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THE FUNDAMENTAL LAW 

OF 

AMERICAN CONSTITUTIONS 

% 


BY A 

FRED A. BAKER 

Of the Detroit Bar and Lecturer on Constitutional Law and History 


in the University of Detroit. 


Vol. I. 


First Impression 


PRINTED FOR THE AUTHOR BY RECORD PRINTING CO., 
DETROIT, MICHIGAN. 

1915. 




.S3 


Copyright, 1915, 
BY 

FRED A. BAKER. 


MAR 29 1915 

©CU39731 2 

Ko t 


PREFACE. 


In writing these lectures it has been my constant endeavor to pro¬ 
duce an elementary work for the use of students at law and other 
beginners in the study of constitutional law and history. 

To do this with any hope of even a small degree of success, it was 
necessary to proceed according to the requirements of a logical analysis 
and gradual development of the subject, and to avoid general history 
except so far as necessary to understand the great constitutional docu¬ 
ments and events which mark epochs in the origin and growth of the 
constitutional law of the United States. 

If these lectures were intended for advanced scholars and profes¬ 
sional experts, it would have been a useless waste of space to have 
included the full text of Magna Carta, the Petition of Right, the Bill of 
Rights, and other statutes and instruments of constitutional import, but 
to those who are taking their first lessons, the full text is of the highest 
importance, as but few can have recourse to the numerous publications 
where the originals can be found. 

Documentary history is the most instructive part of our subject, 
coupled as it is, with the services of such distinguished characters as 
Stephen Langton, Simon de Montfort, Edward Coke, John Hampden, 
James Otis, Alexander Hamilton, James Madison, and others to whom 
reference is made in the following pages. 

Modern research by such great historical scholars as McKechnie, 
Maitland, Stubbs, Pollock, Medley and others in Great Britain, and 
Hannis Taylor and George Burton Adams in America, has made the 
study of constitutional history more interesting and valuable than ever 
before; and it is not too much to say that every American citizen should 
become familiar with the subject, and have as good an understanding 
as each is capable of attaining of the fundamental principles of our 
written** constitutions. 

The increase in population by successive generations of children, 
with the addition of a large influx of the foreign born, coupled with 
manhood suffrage, and in a number of states with female suffrage, is a 
serious element of danger, if it is not counteracted by a more thorough 
instruction in the history of institutions and the essential elements of 
constitutional liberty. 

Some competent person should write a primer on constitutional 
law, for universal use in the schools and colleges, and which would be 
of great benefit, if it were on the evening table of every American home. 


Not competent to write such a primer, my effort has been to pro¬ 
duce such a work as I would like to have had when a studenat at law, 
and if a few of those who are seeking to fit themselves for the legal 
profession find it of some use to them, my highest expectations will be 
realized. 

My prayer is that some of the young men who have listened to 
these lectures, or into whose hands they may happen to fall, will write 
more entertainingly and instructively than I have been able to do. 

Representative taxation and legislation with power in the courts to 
enforce the fundamental law, is the best system of government civilized 
men have ever known, and all attempts to discredit it should meet with 
strong and persistent opposition. F. A. B. 

Dec. 15, 1914. 


CONTENTS. 


Introductory. 

Importance of constitutional law in the United States— 
Constitutional law of a political nature, and constitutional law 
of judicial cognizance—The study of constitutional law—The 
division of the constitutional law of the United States into six 
different subjects—The sovereignty of the people—the divi¬ 
sion of the powers of government into three co-ordinate 
branches—the legislative—the executive—the judicative— 
the reign and rule of law—Illustrations from the constitutional 
provision prohibiting unreasonable searches and seizures and 
general warrants.—P. 1. 


I. 

The Sovereignty of the People. 

The elective franchise and its representative nature— 
Guizot’s classification of governments—Popular assemblies of 
the ancient Germans as described by Tacitus—Township gov¬ 
ernments in the United States—Restrictive statute of British 
Parliament of 1774 (14 Geo. Ill. c. 45, sec, 7)—Democracy 
and representative government inseparable — Immutable 
nature of the fundamental law—Easy methods of amending 
constitutions objectionable*—Initiative and referendum con¬ 
demned.—P. 19. 


II. 

Division of Powers. 

Virginia constitution of 1776 and the Massachusetts con¬ 
stitution of 1780 divide their state governments into three 
departments, the legislative, executive and judicative—The 
constitution of the United States is to the same effect—And 
so are all the state constitutions—But nearly all of these con- 


ii. 


stitutions give the executive a qualified negative on the legisla¬ 
tive—Review of authorities.—P. 41. 


III. 

Division of Powers. 

(Continued.) 

Survival of doctrine that fixing rates is a legislative func¬ 
tion—A Virginia case—Common law remedies abolished by- 
interstate Commerce Act—Ministerial power not the same as 
executive—Whether under the Michigan Constitution of 1908, 
an act of the legislature is to take immediate effect or not is a 
legislative and not a judicial question.—P. 63. 


IV. 

The Legislative. 

The origin and development of the great constitutional 
doctrine, that the power to tax and to legislate, can only be 
exercised by a legislature, one house of which must be directly 
and immediately elected by the people—Charter of Henry I. 
—The events which led to Magna Carta—Archbishop Lang- 
ton’s great services in advising and encouraging the Barons.- 

P. 85. 


V. 

The Legislative. 

(Continued.) 

Full text of Magna Carta as translated by McKechnie— 
Comments thereon—The importance of obtaining a good 
understanding of the Great Charter as a starting place in the 
study of constitutional history and law.—P. 109. 


iii. 


VI. 

The Legislative. 

(Continued.) 

Statute Confirmationes Chartarum—Statute De Tallagio 
non Concedendo—14 Edward Ill., Stat. 2—Petition of Right. 

P. 127. 


VII. 

The Legislative. 

(Continued.) 

The Ship-Money case, 1 Hargraves State Trials 508—2 
How. State Trials 826—Speech of the Lord Keeper showing 
the case submitted by the king to the judges—The judge’s 
answer—Argument of Oliver St. John for Mr. Hampden— 
Argument of Solicitor General for the King—Argument of 
Mr. Holborne for Mr. Hampden—Argument of Attorney- 
General for the King.—P. 147. 

VIII. 

The Legislative. 

(Continued.) 

The Ship-Money case of King v. John Hampden—Opin¬ 
ions of the judges—Seven for the King—Five for Hampden— 
Three of the five on technical grounds—Review of the opin¬ 
ions.— P. 175. 


IX. 

The Legislative. 

(Continued.) 

The Ship-Money case—The judgment of the judges in 
favor of the King reviewed by the House of Lords—Judgment 


iv. 


of the House of Lords reversing the judgment of the judges— 
Act of Parliament declaring ship-writs illegal—Impeachment 
of the judges—Impeachment of the Earl of Straford and the 
Archbishop of Canterbury, and their execution under bills of 
attainder—Trial and execution of Charles 1.—Constitutional 
documents of the Commonwealth and the Protectorate.— 
P. 201. 


X. 

The Legislative. 


(Continued.) 

Reigns of Chas. II. and Jas. II.—Test Acts of 20 Chas. II., 
c. 2; 30 Chas. II., c. 1 ; 3 Jas. I., c. 4; 1 Eliz. Stat. 1, c. 2; 1 
William and Mary, c. 8—Jas. II. continues customs duties by 
proclamation; establishes an Ecclesiastical Commission—Case 
of Godden vs. Hales, 1 1 St. Tr. 1 163—Declaration of Indul¬ 
gence—Case of the Seven Bishops—Prince of Orange takes 
possession of London—Convention Parliament of 1 688-9— 
Bill of Rights—Provisions of American constitutions securing 
religious liberty—Constantine’s Edict of Tolerance of A. D. 
31 3 —P. 223. 


XI. 

The Legislative. 

(Continued.) 

The legislative in the English colonies in America—The 
Virginia Company of London—The Virginia Company of 
Plymouth in England—Colony of Massachusetts Bay—Prov¬ 
ince of Carolina—Grant of New Hampshire—Charter of 
Rhode Island—Charter of Connecticut—Grant of Chas. II. 

to Duke of York—Grant of New Jersey by Duke of York- 

Forfeiture of Charter of Massachusetts Bay and grant of new 
Charter by William and Mary—Grant of Pennsylvania to 


V. 


William Penn—Grant of Delaware by AVilliam Penn—Charter 
of Georgia—The case of the Island of Grenada—The First 
Constitution of Virginia—Sir Edwin Sandys—Compact on 
the Mayflower.—P. 245. 


XII. 

The Legislative, 

(Continued.) 

The legislative power cannot be delegated—Acts of 31 
Henry VIII. authorizing the King to legislate by proclamation 
—Opinion of the judges that the proclamations of the King 
are not law—Ordinance for the government of the territory 
northwest of the river Ohio—Provisional executive govern¬ 
ments with legislative power in the Territories of the United 
States—The steady progress of representative government 
from the Atlantic to the Pacific and to the insular possessions 
of the United States.— P. 267. 

XIII. 

The Legislative. 

(Continued.) 

The Treaty with Spain ceding the Philippine Islands, Porto 
Rico and Guam to the United States—Should the Philippine 
Islands be given their independence?— P. 289. 


XIV. 

The Legislative. 

(Continued.) 

The New York Charters of Liberty of 1683 and 1691 — 
Objections on which the Duke of York as Jas. II. annulled 
the act of 1 683—Adverse report of Lords of Trade on which 
William III. repealed the act of 1691 —Legislative forms.— 

P. 305. 


CITATIONS. 


Page 

Attorney General v. Lindsey, 178 Mich. 524. 75 

Brig Aurora, 7 Cranch 382. 51 

Campbell vs Hall, Cowp. 204. 255 

Chicago, etc., R. v. Minnesota, 134 U. S. 418. 57 

David v. Faines, 48 Ark. 375. 81 

Detroit & Mackinac Ry. v. Mich. R. Com., 178 Mich. 230. 71 

Don Moran v. People, 25 Mich. 356. 77 

Ensworth v. Curd, 68 Mo. 282. 81 

Entick v. Carrington, 19 St. Tr. 1030. 17 

Feek v. Township Board, 82 Michigan 393. 53 

Field v. Clark, 143 U. S. 649. 53 

Georgia R. Co. v. Smith, 70 Ga. 694. 56 

Godden v. Hales, 11 St. Tr. 1165. 226 

Hayburn’s Case, 2 Dal. 409. 45 

In re Sanborn, 148 U. S. 222. 49 

Int. State Com. Com. v. Ry. Co., 167 U. S. 479. 59 

Int. State Com. Com. v. Louis. & Nash. R., 227 U. S. 88. 73 

Johnson v. Comrs., 107 Ind. 15. 81 

King v. Hampden, 3 St. Tr. 826. 175 

Leach v. Money, 19 St. Tr. 1001. 17 

Louisville & Nash. R. v. Garrett, 231 U. S. 298. 66 

Mich. Cent. R. v. Powers, 201 U. S. 245. 69 

Mich. Cent. R. v. Mich. R. Com., 160 Mich. 355. 70 

Mich. Cent. R. v. Circuit Judge, 156 Mich. 459. 71 

Mississippi v. Johnson, 4 Wall 497. 70 

Munn v. Illinois, 94 U. S. 1 1 3. 54 

Owners of Lands v. People, 1 13 Ill. 296. 81 

Pingree v. Auditor General, 120 Mich. 93. 69 

Prentiss v. Atlantic Coast Line, 2 1 1 U. S. 2 I O'. 65 

Railroad Comrs. v. Yazoo, etc., R., 62 Miss. 607. 56 

Railroad Com. Cases, 116 U. S. 307. 56 

Robinson v. Miner & Haug, 68 Mich. 549. 13 

Sanitary District v. Ray, 199 Ill. 63. 81 

Seven Bishops Case, 12 St. Tr. 183. 229 

Ship-Money Case, 3 St. Tr. 826. 148 

State v. Chicago, etc., R., 38 Minn. 281. 56 

State v. County Court, 50 Mo. 37. 81 

State v. Hitchcock, 1 Kan. 178. 81 

Texas, etc., R. v. Abilene, etc., Co., 204 U. S. 426. 68 

Toepel’s Case, 139 Mich. 85. 49 

United States v. Ferriera, 13 How. 40. 46 

United States v. Todd, 13 How. 52. 46 

Wilkes v. Wood, 1 9 St. Tr. 1 1 58. 17 



























































« 

































INTRODUCTORY. 


Importance of constiutional law in the United States. 
Constitutional law of a political nature, and constitutional law 
of judicial cognizance. The study of constitutional law. The 
division of the constitutional law of the United States into six 
different subjects: The sovereignty of the people, the divi¬ 
sion of the powers of government into three co-ordinate 
branches, the legislative, the executive, the judicative, the 
reign and rule of law. Illustrations from the constitutional 
provision prohibiting unreasonable searches and seizures and 
general warrants. 

"Constitutional Law” in its broadest and most general 
meaning has been described as signifying “A system of 
fundamental rules and principles for the government of 
a State, defining the relations and powers of the different 
parts of the government as between one another and as 
between the government and the governed.” 

Constitutions are either unwritten, partly written or 
wholly written. The English constitution is usually re¬ 
garded as unwritten, but there are certain great statutes 
like Magna Charta, the Petition of Right, the Bill of 
Rights, and others which are of a constitutional nature, 
so that it is more correct to say that the English consti¬ 
tution is partly written and partly unwritten. Our 
American constitutions are wholly written, with this 
qualification, that some of their principles are implied or 
assumed to be inherent in our form of government, al¬ 
though not expressed or at least not affirmatively ex¬ 
pressed, by any written provision. The main difference 
between the English constitution and our American con¬ 
stitutions is that the English constitution can be changed 
by an act of Parliament, but in the United States the 


2 


legislative authority has no such power, and our consti¬ 
tutions cannot be altered except in the manner therein 
provided. No court in England has power to declare an 
act of Parliament unconstitutional, but in this country 
the courts have power to declare acts of Congress or 
state legislatures void, because in conflict with the fed¬ 
eral constitution or with the state constitution. 

The importance in the United States of a knowledge 
of constitutional law cannot be overestimated. 

The constitution of the United States is the supreme 
law of the land, and subject to the limitations, imposed 
by the federal constitution, the constitution of each state 
is the supreme law of the state. 

The supreme law modifies, qualifies and regulates all 
other law; it controls all judicial, legislative and execu¬ 
tive proceedings and actions ; it is of the highest value, 
to judges, legislators and executive officers; and it is not 
too much to say that no lawyer is qualified to practice 
his profession unless he is well grounded in the funda¬ 
mental law of his country; without it he is like a ma¬ 
chine without a balance wheel, or a ship without a rud¬ 
der. 

There are two kinds of constitutional law in this 
country, 

1. That kind of constitutional law which is political 
in its nature and the enforcement of which is not within 
the jurisdiction of the courts. Thus, the federal courts 
have no authority to determine the result of a presiden¬ 
tial election, or an election or appointment to either 
house of Congress; nor can they decide whether a con¬ 
stitutional amendment has been legally adopted or 
whether a republican form of government has been es¬ 
tablished or exists in any state, or whether a state board 
of canvassers or a state legislature has correctly deter¬ 
mined a state election. 


3 


Into this class are also to be included all those pro¬ 
visions of our constitutions which relate to the frame¬ 
work of the government which provide for a senate con¬ 
sisting of two senators from each state, and that no state 
shall be deprived of its equal representation therein; 
which provide for a house of representatives, the mem¬ 
bership of which is apportioned among the states accord¬ 
ing to their population; which provide for a president, 
who, with such subordinate officers as may be provided 
by law, is to exercise the executive power; which provide 
for a supreme court, which, with such other courts as 
may be established by Congress, is to possess the judicial 
power of the general government. 

These and many other provisions of our constitutions, 
both federal and state, are not of judicial cognizance. 

2. The second and more important kind of constitu¬ 
tional law is that which is designed to protect private 
and public rights, and which it is the peculiar province 
of the courts to enforce with all the means in their 
power. 

Into this class must be included all those provisions 
called the “Declaration of Rights;” also those which limit 
or restrict the power of taxation; also those which draw 
a line of demarkation between the powers of the general 
government and the powers of the state governments; 
and between the powers of the state governments and 
those constitutionally possessed by counties, cities, town¬ 
ships and villages and school districts; also those which 
divide our governments into legislative, executive and 
judicial branches or departments; and numerous other 
provisions limiting and restraining the governmental 
power. 


4 


THE STUDY OF CONSTITUTIONAL LAW. 

The best way is to read constitutional history as a 
recreation. Have one of the many works on the subject 
constantly on the table in the room where you spend 
your evening hours, and before retiring put your mind 
in a restful condition by reading a few pages of consti¬ 
tutional history. 

It is difficult to form an opinion as to which author a 
student should begin with. My advice is to first read 
the constitution of the United States and the constitu¬ 
tion of Michigan, word for word, from beginning to end, 
comprehending, understanding and absorbing as much 
as you can. But you must remember that almost every 
provision you read has a history back of it, some of it 
going back beyond the Christian era, and to fully ap¬ 
preciate the full meaning and force of the different pro¬ 
visions, wliat is implied as well as what is affirmatively 
expressed, you must study that history. 

The constitutional law of the United States divides it¬ 
self into six different subjects. 

1. The doctrine of popular sovereignty. 

2. Division of the powers of government into three 
co-ordinate branches. 

3. The legislative. 

4. The executive. 

5. The judicative. 

6. The reign and rule of law. 


Each’ one of these subjects requires a separate lecture, 
and some of them many more than one. 

When reading any of our constitutions, federal or 
state, have these divisions of the subject in mind, and in 
that way you will comprehend the scope, the extent and 
the diversity of the subject and the laboriousness of the 
work before you. It may be a little tedious at first, but 
when you get into it you will have more real enjoyment 
than in the study of any other branch of the law. 

Having read the constitution of the United States and 
the constitution of Michigan, it would be advisable to 
examine the constitutions adopted by the thirteen original 
states, and by Vermont, the fourteenth state, before the 
constitution of the United States was framed. In that 
way you will obtain a good understanding of the kind of 
constitution makers, the founders of the republic were; 
of the spirit that actuated them and the principles of 
constitutional liberty which governed them. 

Early in the eventful year 1776, New Hampshire (Jan. 
5, 1776) and South Carolina (March 26, 1776) adopted 
temporary instruments of government, to continue until 
an adjustment of their “unhappy differences” and “unnat¬ 
ural contest” with Great Britain could be obtained. 

Virginia has the honor of being the first colony to 
adopt a constitution severing all relations with the 
mother country, and with no hope or desire for a recon¬ 
ciliation. 

A “Virginia Bill of Bights,” drafted by George Mason, 
one of the most distinguished of her revolutionary states¬ 
men, was adopted by a convention composed of the colo¬ 
nial house of burgesses, June 12, 1776, and the balance 
of the constitution was adopted by the same convention, 
June 29, 1776, thereby anticipating the Declaration of 
Independence five days. 

The other states followed in the following order: 


6 


New Jersey, July 3, 1776. 

Delaware, Sept. 21, 1776. 

Pennsylvania, Sept. 28, 1776. 

Connecticut, Oct, 15, 1776. 

Maryland, Nov. 11, 1776. 

North Carolina, Dec. 18, 1776. 

Georgia, Feb. 5, 1777. 

New York, April 20, 1777. 

Vermont, July 8, 1777. 

South Carolina, March* 10, 1778. 

Massachusetts, March 2, 1780. 

New Hampshire, June 2, 1784. 

The colonial charter of Rhode Island was the only 
constitution of that state until 1842. Connecticut did 
not do anything more than to adopt a short declaration 
of rights until 1818. The explanation is that their char¬ 
ter governments were so democratic that state constitu¬ 
tions were not necessary to enjoy independence and par¬ 
ticipate in the Federal Union. 

Your next duty will be to study “The Federalist.” 

It consists of 85 Essays, written by James Madison, 
Alexander Hamilton arid John Jay, all writing under 
the name of “Publius.” The first, number was published 
Oct. 27, 1787, and the last number Aug. 15, 1788. These 
essays were written in support of the constitution, when 
its ratification by the states was under consideration. 

From them you can learn what the makers and de¬ 
fenders of the constitution claimed for it. 

The constitution met with strenuous opposition, being- 
opposed by such distinguished patriots as George Mason 
and Patrick Henry in Virginia, by George Clinton in 
New York, and by many other able men in the several 
states. The ratification of the constitution by nine 
states was required, and a confederacy of nine states 


( 

was possible, but finally all the states ratified, and the 
Federal Union became complete. 

The original thirteen states and Vermont ratified the 
constitution in the following order: 

Delaware, Dec. 7, 1787. 

Pennsylvania, Dec. 12, 1787. 

New Jersey, Dec. 18, 1787. 

Georgia, Jan. 2, 1788. 

Connecticut, Jan. 9, 1788. 

Massachusetts, Feb. 6, 1788. 

Maryland, April 28, 1788. 

South Carolina, May 23, 1788. 

New Hampshire, June 21, 1788. 

Virginia, June 26, 1788. 

New York, July 26, 1788. 

North Carolina, Nov. 21, 1788. 

Vermont, Jan. 10, 1790. 

Rhode Island, May 29, 1790. 

It was a protracted struggle, but the constitution 
finally won, and it became the supreme law from the 
national boundary on the north’ to the then national 
boundary on the south. It was largely due to the per¬ 
sonal influence and activity of George Washington, the 
great ability of Alexander Hamilton and James Madison, 
the wise counsels of Benjamin Franklin, Samuel Adams 
and John Hancock, and the legal learning of James Wil¬ 
son and Theophilus Parsons. 

The main objection to the constitution was that it 
contained no bill of rights, but that objection was over¬ 
come by the wisdom and strategy of the friends of the 
constitution in the Massachusetts convention. They 
secured a ratification of the constitution, accompanied 
with a recommendation of amendments to be adopted 
after the government was organized, providing for a bill 
of rights. 


8 


This plan was of great assistance, if it did not actually 
determine, the controversy in the great states of Vir¬ 
ginia and New York. 

To it we are indebted for the first ten amendments, 
which, taken in connection with the limitations on the 
general government and on the state governments in 
the body of the constitution, and the amendments since 
adopted, we have the greater part of the constitutional 
law of the United States. 

In addition we have the limitations imposed in each 
state by its own constitution; but outside of the frame¬ 
work of the state governments, and as far as bills of right 
and the great principles of constitutional freedom are con¬ 
cerned, the state constitutions and the federal constitution 
are substantially the same. The difference between the state 
constitutions and the federal constitution is principally 
this, that the federal constitution is a grant of power, 
with limitations, and the first question concerning the 
validity of an act of Congress is whether it is within any 
of the powers conferred on Congress by the constitution. 
On the other hand the state constitutions are framed on 
the theory that the people of each state, and their legis¬ 
latures, have full power and authority except as far as 
their power is restricted and limited by the constitution 
of the United States and by their own constitutions. 

The causes which led to the American revolution, and 
impelled the colonies to fight for independence, and to 
set up independent state government with constitutions 
of their own, belong to general history. Like all other 
revolutions, it was brought about by economic reasons. 
The trade and commerce of the colonies were being 
ruined by the restrictions imposed by the British Parlia¬ 
ment. The acts are known as the Acts of Navigation and 
Trade and the Molasses Act. Some of these acts had 
laid dormant for nearly a century, but when it was an- 


9 


nounced that they would be enforced, it caused great ex¬ 
citement in the colonies, especially in New England. 

Obeying instructions from England, the revenue offi¬ 
cers of the crown in Bostbn made an application to the 
Superior Court of the colony, early in 1761, for writs of 
assistance to enable them to search wherever they pleased 
for smuggled goods, from the cellar to the garret of every 
house. James Otis, a Boston lawyer from Cape Cod, re¬ 
signed the office of Advocate-General of the Court of 
Admiralty, and made his famous argument against the 
application. Otis was a learned lawyer and a tempestu¬ 
ous orator, and the way he sailed into the Acts of Parlia¬ 
ment and Writs of Assistance brought him everlasting 
fame. He reviewed the acts and contended that so far 
as they imposed duties for revenue they were unconsti¬ 
tutional, because not passed or approved by the legisla¬ 
tive authority of the colony of Massachusetts Bay; he 
indulged in bitter invective against the tyranny of tax¬ 
ation without representation, and asserted that the acts 
of trade did impose ruinous and intolerable taxes; he 
denounced general warrants as utterly illegal, that there 
were no precedents for them; and then, in his enthusi¬ 
asm, he asserted a doctrine that was to become the great 
characteristic feature of the constitutional law of the 
United States. 

James Otis said: “All precedents are under control 
of the principles of law, and no Act of Parliament can 
establish such a writ, for an act against the constitution 
is void.” 

John Adams, then a young lawyer, was present when 
Otis made his argument, and undertook to make a report 
of it, but he became so interested in the information Otis 
was pouring forth that the notes Adams made were im¬ 
perfect; however, to the end of his life he could bv recol¬ 
lection give a more complete synopsis. 


10 


There is no doubt about the effect of Otis’ argument, 
not only in Massachusetts but throughout the colonies. 

Adams not only heard the argument but witnessed its 
effect, and in after years was wont to say, “On that day 
the child Independence was born.” 

When Virginia started the work of making state con¬ 
stitutions, she put into her Bill of Rights this provision: 

“That general warrants, whereby an officer or messen¬ 
ger may be commanded to search' suspected places with¬ 
out evidence of a fact committed, or to seize any person 
or persons not named, or whose offense is not particu¬ 
larly described and supported by evidence, are grievous 
and oppressive and ought not to be granted.” 

Delaware, Pennsylvania, Maryland, Vermont, Massa¬ 
chusetts and New Hampshire, in the order named, fol¬ 
lowed the example of Virginia; and when the first ten 
amendments were adopted, as limitations on the general 
government, the above provision, in fewer words, was in¬ 
cluded as Art. IV. Now you will find the same provision 
in the constitution of every state in the Union. 

This is probably the best way to study constitutional 
law, that is, to take up each of the more important pro¬ 
visions of our constitutions, study its history, and ascer¬ 
tain the occasion and object of it. 

Here I wish to give you a word of caution. In the 
United States we have written constitutions; but to a 
certain extent they are misleading. William E. Glad¬ 
stone said: “As the British constitution is the most 
subtle organism which has proceeded from progressive 
history, so the American constitution is the most won¬ 
derful work ever struck off at a given time by the brain 
and purpose of manbut that tribute is also in some 
respects misleading. 

Our American constitutions for the more part are 
merely declaratory of certain fundamental principles of 


11 


government which are very old, as their origin and devel¬ 
opment can be traced in history, some of them, from the 
dawn of civilization. They were immediately derived 
from the common law and constitution of England, cor¬ 
roborated and supported by the civil and canon law of 
the ancient Romans. They have been for a time, and 
may be again, crushed, and apparently destroyed by fire 
and sword, but sooner or later they will rise, Phoenix¬ 
like, from their ashes, and go marching on, shedding 
their benign influence throughout the world. 

The Roman empire as a temporality, or secular power, 
has disappeared, but the civil law has survived, and is 
today the basic law of continental Europe, and of Lou¬ 
isiana, one of these United States of America. 

The same is true of the great fundamental principles 
of the common law and the constitutional liberty of 
England. 

The reason for all this is that fundamental law is the 
product of justice, truth and reason, and is not depend¬ 
ent on written constitutions or legislative enactments. 
Repeal all the written constitutions in the United States, 
and their fundamental principles would survive; and 
they would be found to be “law,” in the true sense of 
that word, in that they are true and right, and, like the 
laws which control the universe, are immutable, imper¬ 
ishable and eternal. 

The fathers of this republic did not invent them, did 
not cut them out of whole cloth or strike them off; they 
simply recognized and declared them, and did it in as 
good and plain English as ever was written. All honor 
to them; they are entitled to fie revered, respected and 
eulogized as long as grass grows and water runs. 

It must not be assumed that the constitutions framed 
and adopted in the United States were the first attempts 


12 


at written constitutions. There were many prior efforts 
in that direction, and in some future lecture I will pass 
them in review. 

I will bring this lecture to a close by calling your at¬ 
tention to another important feature of our written con¬ 
stitutions. While they are in good English, they have 
the imperfections of language, and they are based on cer¬ 
tain assumptions, and take many things for granted. 
These are the implied restrictions flowing from the ex¬ 
press provisions of these instruments. 

Having taken the provision prohibiting unreasonable 
searches and seizures and general warrants, for one illus¬ 
tration, I will use it for another. 

The Michigan constitution says: 

“The person, houses, papers and possessions of every 
person shall be secure from unreasonable searches and 
seizures. No warrant to search any place, or to seize 
any person or things, shall issue without describing 
them, nor without probable cause supported by oath or 
affirmation.” 

It will be noticed that this provision does not lay 
down any rule as to when a warrant to search or to ar¬ 
rest is to be necessary. At the common law, arrests for 
treason or felony could be made without a warrant, but 
for misdemeanors and other penal offenses, unless the 
offense was a breach of the peace in view of the officer, 
a warrant was necessary. The distinction is based on the 
fact that the higher offenses are more dangerous to so¬ 
ciety, and are universally recognized as crimes, while 
the lesser offenses are not so dangerous to the commun¬ 
ity, and relate more to the mere vices of the people, and 
frequently are only wrong because they are prohibited 
by statute or municipal ordinance. 

It is a very plain proposition that the provision pro- 


13 


hibiting general warrants, and warrants without cause 
shown, assumes that the common law rule requiring a 
warrant in cases of misdemeanor not breaches of the 
peace in view of the officer was to continue in force, and 
was not to be subject to change by the legislature. 

This is a question that has been a matter of contro¬ 
versy in the Supreme Court of Michigan. 

In 1887 the legislature passed a drastic law regulating 
the liquor traffic, and put into it a section authorizing 
officers to arrest without warrant for certain violations 
of the act, which were not of themselves breaches of the 
peace in presence of the officer. 

The Supreme Court, in an opinion by Judge Campbell, 
held this provision unconstitutional. Champlin, Morse 
and Long, JJ., concurred. Sherwood, J., dissented. 

As it is an instructive exposition of the law of the 
constitution on the subject, and shows the kind of con¬ 
stitutional lawyer Judge Campbell was, I will read from 
it. {Robinson vs. Miner and Haug, 68 Mich., 549, pp. 
55-7-8-9). 

Campbell, J., says: “Under our system we have re¬ 
peatedly decided, in accordance with constitutional prin¬ 
ciples as construed everywhere, that no arrest can be 
made without warrant except in cases of felony, or in 
cases of breaches of the peace committed in the presence 
of the arresting officer. This exception, in cases of 
breaches of the peace, has only been allowed by reason 
of the immediate danger to the safety of the community 
against crimes of violence, and it was confined, even in 
such cases, to instances where the violence was commit¬ 
ted in the presence of the officer. There are not many 
such cases. The common and statute law provide for 
verv few specified breaches of the peace, and there are 
none that are not specified. An indictment charging a 
person as a peace-breaker, and not with any specified 


14 


crime, would be good for nothing. Assaults and riotous 
conduct make up the largest part of the list. But there 
can he no breach of the peace within the meaning of the 
law that does not embrace some sort of violent as well 
as dangerous conduct. The manifest purpose of this 
statute is to bring certain things that are not breaches 
of the peace within that denomination to avoid the ne¬ 
cessity of a warrant. But, as already suggested, the con¬ 
stitution cannot be so evaded. The cases covered by the 
statute present some peculiar features. No doubt keep¬ 
ing open places of sale late in the evening may lead to 
breaches of the peace, and, when they actually occur in 
an officer’s presence, arrest may be made for that. Most 
of the acts denominated breaches of the peace by this act 
are fixed after the regular closing hours at night. An 
officer arresting without process must, as soon as prac¬ 
ticable, take his prisoner before the nearest magistrate, 
where he can be bailed, or examined, or put on trial, as 
the case may be. But the arrests provided for in this 
act would necessarily keep the parties arrested impris¬ 
oned until a magistrate could be found, and probably 
hold them in durance until the next day at least, 
and subject them to more than usual annoyance. Need¬ 
less nocturnal arrests are among the greatest abuses 
which officers can practice, and where, as will sometimes 
at least be the case, there is no legitimate cause for ac¬ 
cusation, and the officer is irresponsible, the wrong is 
very great and without any adequate civil remedy. 

“It was also held in a number of cases which have 
been famous in history that no general warrants could 
lawfully issue at common law, and our constitution has 
embodied that idea in very clear and express terms. But 
this statute is practically, if carried out, a general war¬ 
rant itself, directing all officers to visit houses and busi¬ 
ness places without other authority, and make searches 


15 


and arrests, and close np places of business on their own 
well or ill-founded notion that the law has been vio¬ 
lated/’ 

The charter of Grand Rapids, passed in 1885, author¬ 
ized police officers to arrest without a warrant for vio¬ 
lation of the ordinances of the city committed in the 
presence of the officer, although not breaches of the 
peace. The validity of this provision came before the 
Supreme Court in 1894, and the court as then consti¬ 
tuted, in an opinion by Judge Montgomery, held it valid. 
Grant and Hooker, JJ., concurred; McGrath and Long, 
JJ., dissented in an opinion by Judge McGrath. 

Long was the only member of the court who had par¬ 
ticipated in the prior decision. The result is that nine 
judges of the Supreme Court passed on the question, and 
five of them held the legislation unconstitutional, but 
that does not change the fact that the last decision is 
authoritative until it is overruled. 

The truth is, the implications of our constitutions are 
very important parts of them, and that a person who, 
in reading them, can only see or comprehend what is af¬ 
firmatively expressed makes a great mistake. 

Eliminate the assumptions and implications and our 
written constitutions would be but little more than skele¬ 
tons, without vigor, without spirit and without life. 

In fifteen of the state constitutions trials by jury are 
secured, but there is no definition or description of the 
jury. In twenty-three states it is expressly provided 
that the jury shall be of the vicinage, county or district 
where the offense was committed. In five states the ver¬ 
dict of the jury is required to be unanimous, and in four 
states only is the number of the jury fixed at twelve. 

In the federal constitution a trial by a jury of the state 
and district where the offense was committed is required, 


16 


but the number of the jury and unanimous verdicts are 
not mentioned. 

The Virginia constitution of 1776 is the only constitu¬ 
tion which makes mention of all the elements of a jury 
trial, viz: “by an impartial jury of twelve men of his 
vicinage, without whose unanimous consent he cannot 
be convicted.” 

When we read any provision of an American constitu¬ 
tion providing for a jury, it must be assumed that all 
three elements of a common law jury were intended, viz., 
twelve jurors, unanimous verdict, vicinage, unless there 
are express words to the contrary, as there are in a few 
states. 

Hereafter I will have something to say about jury 
trials, only alluding to the subject now to show that in 
construing a constitution we must dig deeper than the 
express words of the instrument. 

Pursuing the course I have indicated, we will mutu¬ 
ally engage in the study of constitutional law and his¬ 
tory. 


BIBLIOGRAPHY.—The Constitution of the United States, 
and the successive Constitutions of the several states, and the 
colonial charters which were the constitutions of the English 
colonies in America, have been (1909) published in seven 
volumes under the editorship of Francis Newton Thorpe, by 
the United States Government. 

Bancroft’s “History of the Formation of the Constitution of 
the United States’’ was published by Appleton & Co., of New 
York, in 1882. 

“The Federalist’’ is in every library, but the most complete 
and satisfactory edition was published by Lippincott & Co., 
of Philadelphia, in 1875. 

Quincy’s Massachusetts Report has an appendix, by Horace 
Gray, when a member of the Boston Bar, and before he 


17 


became a justice and then chief justice of the Supreme Judi¬ 
cial Court of Massachusetts, and then an associate justice of 
the Supreme Court of the United States, in which he exhaus¬ 
tively reviews the subject of writs of assistance, from the legal 
point of view. 

Gray reached the conclusion that writs of assistance were 
legal, and, “though contrary to the spirit of the English con¬ 
stitution, could hardly be refused by the Provincial court, 
before general warrants had been condemned in England and* 
before the revolution had actually begun in America.” 

Lord Mansfield and Lord Camden delivered their famous 
judgments pronouncing general warrants for persons or papers 
illegal in England* in 1763 and 1765, and it was not asking 
too much of the Superior Court of Massachusetts to do the 
same thing in Massachusetts in 1761. 

(Wilkes v. Wood, 19 St. Trials, 1153; Leach v. Money, 
19 St. Trials, 1001; Entick v. Carrington, 19 St. 
Trials, 1030.) 


H 

























* 








19 


THE SOVEREIGNTY OF THE PEOPLE. 

The elective franchise and its representative nature— 
Quizot s classification of governments—Popular assemblies of 
the ancient Germans as described by Tacitus—Township gov¬ 
ernments in the United States—Restrictive statute of British 
Parliament of 1774 (14 Geo. III. c. 45, sec. 7)—Democracy 
and representative government inseparable — Immutable 
nature of the fundamental law—Easy methods of amending 
constitutions objectionable—Initiative and referendum con¬ 
demned. 

Sovereign power is supreme power; it is power that 
is not subject to any restrictions or limitations what¬ 
ever. It was exercised by the people of the English 
colonies in America when the colonies declared their 
independence and sustained it by force of arms; when 
each colony as an independent state adopted a constitu¬ 
tion of its own making, and when they adopted the Con¬ 
stitution of the United States. 

Each of the colonies before the Revolution had a 
Legislative Assembly, a House of Representatives, and 
these were continued when the war began, and the voice 
and will of the people found expression in them. In 
that way the sovereignty of the people was exercised. 
Legislative assemblies were then and must ever be the 
most effective and the only way in which the will of the 
people as a mass can be expressed and made known. 

The preamble of the Constitution of the United States 
reads: 

“We, the People of the United States, in order 
to form a more perfect Union, establish justice, 


20 


insure domestic tranquility, provide for the com¬ 
mon defense, promote the general welfare, and 
secure the blessings of liberty to ourselves and 
our posterity, do ordain and establish this Consti¬ 
tution for the United States of America.” 

The preamble, or the body of the instrument, of each 
State Constitution, expresses the same doctrine, so that 
we can say, without contradiction, that the first great 
principle of the constitutional law o^ the United States 
is that all the sovereign powers of government are 
primarily vested in the people; that the supreme power 
can only be exercised by the people, and that public 
officials from the chief magistrate of the nation to the 
most petty officers known to the law, derive their author¬ 
ity from the people as the only source of every power 
and function of organized government. 

The sovereignty that resides in the people is not 
divided into as many parts as there are persons, or even 
qualified electors in the nation or State, but it resides 
in them in their collective capacity as an organized body 
politic, and they exercise their sovereignty by means of 
representative assemblies and constituent conventions, 
the membership of which, although elected by a ma¬ 
jority, also represent the minority of the voters, at least 
to the extent that they give them an opportunity to be 
heard and pay some respect to their interests. 

When we speak of government by the people we do 
not mean that all of the men, women and children who 
constitute the State, have a right to directly participate 
in the government. 

In the exercise of the elective franchise the husband 
and father represents the wife and mother, and their 
children. The family is the political as well as the 
social unit. When a son reaches the age of 21 years, 


21 


the family has an additional representative in the elec¬ 
torate, or whole body of persons qualified to vote. The 
evident reason for this is, that men and women who 
marry and raise a family of children are entitled to a 
larger representation than those who do not. Another 
explanation is that the family is given such additional 
representation on the theory that in the natural course 
of each son’s life he wall himself become the head of a 
family, and as such entitled on his own and their behalf 
to participate in the elections. As matrimony is a 
natural state, the right to vote might be withheld from 
sons until they do marry, without violating any principle 
of representative government, or popular sovereignty. 
On the other hand, adult females might be entrusted 
with the elective franchise, without doing violence to 
fundamental principles, unless it would have a tendency 
to weaken family ties, and reduce the social and political 
unit to the single adult individual. 

The home is the center and unit of human existence, 
around which the best and noblest sentiments of man¬ 
kind cling and cluster; and the mother is its empress, 
its supreme ruler. 

Whatever the qualifications of electors may be, the 
non-voting members of each community are represented 
by the voters of the community; and in that way the 
sovereignty inherent in all the people, is vested in, en¬ 
trusted to, and exercised by the qualified electors. 

When we say the people as represented by the qualified 
voters among them are vested with sovereign power we 
do not mean that the people acting by a majority of 
votes are sovereign in the sense that whatever they do 
must be regarded as right. Reason, truth and justice 
alone are sovereign. Whether the sovereign powers of a 


22 


government are vested in one man as in a despotism, or 
in a few men as in an aristocracy, or many men as in a 
democracy; or in a combination of all or some of these, 
in a constitutional monarchy, or a constitutional repub¬ 
lic the object sought but never fully attained, is wisdom 
and justice. The absolutism of a majority is no different 
in principle than the absolutism of a despot, and repre¬ 
sentative government is no better than any other, except 
so far as it is, or may prove to be the more capable of 
governing wisely and well. 

Classifying governments on this basis, Guizot, an 
eminent French statesman and historian, in his “Repre¬ 
sentative Government,” at page 61, says : 

“I distinguish two kinds. First there are those 
which attribute sovereignty as a right belonging 
exclusively to individuals, whether one, many or 
all those composing a society; and these are, in 
principle, the founders of despotism, although 
facts, always protest more or less strongly against 
the principle; and absolute obedience on the one 
hand, and absolute power on the other, never 
exist in full vigor. The second class of govern¬ 
ments is founded on the truth that sovereignty 
belongs as a right to no individual whatever, 
since the perfect and continued apprehension, the 
fixed and inviolable application of justice and of 
reason, do not belong to our imperfect nature. 

“Representative government rests upon this 
truth. I do not say that it has been founded upon 
the full reflective acknowledgment of the princi¬ 
ple in the form in which I have stated it. Govern¬ 
ments do not, any more than great poems, form 
themselves on an a priori model, and in accord¬ 
ance with defined precepts. What I affirm is, that 
representative government does not attribute sov¬ 
ereignty as inherently residing in any person—that 
all its powers are directed to the discovery and 
faithful fulfillment of that rule which ought ever 
to govern their action, and that the right of 


23 


sovereignty is only recognized on the condition 
that it should be continually justified. 

“‘Plurality which does not reduce itself to 
unity is confusion. Unity which is not the result 
of plurality is tyranny.’ This is the happiest 
expression and the most exact definition of repre¬ 
sentative government. The plurality is society; 
the unity is truth, is the united force of the laws 
of justice and reason, which ought to govern 
society. If society remains in the condition of 
plurality, if isolated wills do not combine under 
the guidance of common rules, if they do not all 
equally recognize justice and reason, if they do 
not all reduce themselves to unity, there is no 
society, there is only confusion. And the unity 
which does not arise from plurality, which has 
been violently imposed upon it by one or many, 
whatever may be their number, in virtue of a 
prerogative which they appropriate as their ex¬ 
clusive possession, is a false and arbitrary unity; 
it is tyranny. The aim of representative govern¬ 
ment is to oppose a barrier at once to tyranny 
and to confusion, and to bring plurality to unity 
by presenting itself for its recognition and accept¬ 
ance.” 

Guizot had a long and successful public career in 
France and was at the head of the government under 
Louis Philippe for eight years previous to the revolution 
of 1848 when he was forced into retirement. After re¬ 
ferring in his lectures on representative government to 
the government in France with which he was so familiar, 
consisting of the royal power, the house of peers and the 
chamber of deputies, he continues at page 63: 

“The publicity of the debates in the deliberate 
assemblies imposes upon the powers the necessity 
of commending themselves to the sense of reason 
and justice which belong to all, in order that 
every citizen may be convinced that their inquiries 
have been made with fidelity and intelligence, 
and that, knowing wherein they are deficient, he 
may himself have the opportunity, if he has the 


24 


capacity, to indicate the remedy. Liberty opens 
up a career for this inquiry. In this way, every 
citizen may aid in the discovery of the true law. 
Thus does a representative government impel the 
whole body of society—those who exercise power, 
and those who possess rights—to enter upon a 
common search after reason and justice; it invites 
the multitude to reduce itself to unity, and it 
brings forth unity from the midst of plurality. 
The public powers—royalty, the deliberative 
houses, the electors—are bound and incessantly 
made to return to this w^ork, by the ^essential 
nature of their relations, and by the laws of their 
action. Private citizens even can co-operate, by 
virtue of the publicity of the debates, and the 
liberty of the press.’ 7 

Guizot was a French Huguenot, but 

“he retained not a tinge of the intolerance or 
asperity of the Calvinistic creed. He respected in 
the Church of Rome the faith of a majority of his 
countrymen; and the writings of the great Cath¬ 
olic prelates, Bossuet and Bourdaloue, w T ere as 
familiar and dear to him as those of his own per¬ 
suasion, and were commonly used by him in the 
daily exercises of family worship” {Reeve, in 
Enoy. Brit.), 

Popular governments are not based on the theory that 
they will always govern wisely and justly, but on the 
theory that in the long run they will be oftener right 
than any other kind of government, and that they can be 
relied on to correct their own mistakes more implicitly 
than despotisms, or monarchies or aristocracies can be 
relied on to correct their mistakes. 

All governments are subject to certain inherent re¬ 
straints. They are restrained by their own conceptions 
of right and wrong, and by the fact that they may be 
resisted and overthrown; and the reason why representa¬ 
tive government is superior to any other is that it pro- 


25 


duces a greater degree of harmony between those who 
are charged with the functions of government and those 
who are governed. Under a truly representative system, 
the government and the people cannot long remain an¬ 
tagonistic to each other, for the people govern themselves. 

The doctrine that the supreme and sovereign powers 
of government are vested in the people is as old, in 
practice, at least, as the governments which prevailed 
among the Teutonic tribes inhabiting northern Germany 
during the century before the commencement of the 
Christian era, and no one knows how long before. 

We derive our principal knowledge of the ancient Ger¬ 
mans from the writings of Julius Caesar, the greatest 
statesman and general of Roman history, and of Cor¬ 
nelius Tacitus, the Roman historian. Caesar during the 
years 55 and 56 B. C. conquered the Gauls, and estab¬ 
lished the dominion of Rome from the Pyrenees to the 
Rhine. He found Germans on the west bank of the 
Rhine, had numerous encounters with them, and drove 
them across the river. He built a bridge and crossed the 
Rhine, but only remained in Germany eighteen days. He 
also invaded Britain, but did not leave a garrison there. 
Caesar in his “Bello Gallico” gives a brief account of the 
Britons and a more extensive description of the Ger¬ 
mans. 

Tacitus wrote his “Germania” A. D. 98. His account 
of the Germans does not wholly agree with that of 
Caesar, but this is probably due to the fact that at the 
time he wrote the Romans had a much better knowledge 
of Germany and its inhabitants than they did in the time 
of Caesar. 

The German nations did not inhabit cities; they dwelt 
scattered and separate, as a spring, a meadow, or a grove 


might chance to invite them. Their villages were not 
laid out in rows of adjoining buildings, but every house, 
such as it was, was surrounded with a vacant space. 
They were not in Caesar’s time studious of agriculture, 
although they did raise rye, oats and barley, from which 
they brewed beer. Their food consisted of wild fruits, 
venison, beef, cheese and milk. Usury was unknown to 
them. The arable lands were divided into townships in 
allotments proportionate to the number of cultivators, 
and parceled out among the individuals of the district. 
No one had a portion of land as his own property. The 
allotments made each year were changed the succeeding 
year. The reasons for this were that they should not 
be led, by being accustomed to one spot, to exchange the 
toils of war for the business of agriculture, and to pre¬ 
vent them from acquiring a passion for possessing ex¬ 
tensive domains which would lead the more powerful to 
dispossess the weaker ; to prevent them from construct¬ 
ing buildings with more art than was necessary to pro¬ 
tect them from the inclemencies of the weather; to pre¬ 
vent the love of money from arising among them, and 
in order that the people beholding their own possessions 
equal to those of the most powerful might be retained 
by the bonds of equity and moderation. 

Caesar and Tacitus must be read in full to be properly 
appreciated. But for the purpose of showing the char¬ 
acter of the public assemblies of the Germans and their 
manner of transacting business thereat, we quote chap¬ 
ters or paragraphs 11 and 12 of Tacitus. 


TEUTONIC ASSEMBLIES. 

"11. On affairs of smaller moment, the chiefs 
consult; on those of greater importance, the whole 


27 


community; yet with this circumstance, that what 
is referred to the decision of the people is first 
maturely discussed by the chiefs. They assemble, 
unless upon some sudden emergency, on stated 
days, either at the new or full moon, which they 
account the most auspicious season for beginning 
any enterprise. Nor do they, in their computation 
of time, reckon, like us, by the number of days, 
but of nights. In this way they arrange their 
business; in this way they fix their appointments; 
so that, with them, the night seems to lead the 
day. An inconvenience produced by their liberty 
is, that they do not all assemble at a stated time, 
as if it were in obedience to a command; but two 
or three days are lost in the delays of convening. 
When they all think fit, they sit down armed. 
Silence is proclaimed by the priests, who have on 
this occasion a coercive power. Then a king, or 
chief, and such others as are conspicuous for age, 
birth, military renown, or eloquence, are heard; 
and gain attention rather from their ability to 
persuade, than their authority to command. If 
a proposal displease, the assembly reject it by an 
inarticulate murmur; if it prove agreeable, they 
clash their javelins; for the most honorable ex¬ 
pression of assent among them is the sound of 
arms. 

“12. Before this council is it likewise allowed 
to exhibit accusations, and to prosecute capital 
offenses. Punishments are varied according to the 
nature of the crime. Traitors and deserters are 
hung upon trees; cowards, bastards and those 
guilty of unnatural practices are suffocated in 
mud under a hurdle. This difference of punish¬ 
ment has in view the principle, that villainy should 
be exposed while it is punished, but turpitude con¬ 
cealed. 

“The penalties annexed to slighter offenses are 
also proportioned to the delinquency. The con¬ 
victs were fined in horses and cattle; part of the 
mulct goes to the king or state; part to the in¬ 
jured person or his relations. In the same assem¬ 
blies chiefs are also elected, to administer justice 


28 


through the cantons and districts. A hundred 
companions, chosen from the people, attend upon 
each of them, to assist them as well with their ad¬ 
vice as their authority” (12 Works of Tacitus , Ox¬ 
ford Translation, p. 300). 

Some of the ancient Teutonic tribes were monarchial 
to this extent, that their chiefs were usually chosen from 
noble families. These chiefs are mentioned by Tacitus 
as kings, but there is some doubt whether this word 
conveys a correct conception of their relations to their 
tribes. Successful leadership and valor in war was the 
origin of the nobility, but this was coupled with the 
belief that they were descended from the German God 
Woden or Odin. The sovereign power was vested in the 
tribe assembled in a public meeting for the transaction 
of business as a legislative and judicial body, and the 
chief, whether chosen from a noble family or not, was 
the creature of the assembly and subject to its will. 

The most remarkable characteristic of the Germans 
was the chastity of their women and men. The family 
was everything with them, and uncles and aunts were 
regarded as occupying a parental relation towards their 
nephews and nieces. Living in homesteads clustered in 
villages with a small parcel of land surrounding each 
dwelling, the arable lands were divided into two or three 
great fields to allow a rotation of crops, with one field 
fallow each year, and each family was annually allotted 
a portion of the fields under cultivation, while the pasture 
lands were used in common under regulations prescribed 
by the tribe. Beyond the pasture lands was a strip of 
waste or unoccupied land which marked the territorial 
limits, and gave the name of “mark” to the smallest civil 
and military organization known to the Germans. The 
mark is the equivalent of the township or parish in Eng¬ 
land and the United States, and is the political unit 


from which arose the hundred, the canton, shire or 
county, the kingdom, or state, and the union of a num¬ 
ber of kingdoms or states into one greater kingdom, or 
one federal union. 

The private ownership of land commenced with the 
village homestead we have described, and it finally 
included not only the arable lands, but also the pasture 
and waste lands. However, there are village communi¬ 
ties in Germany to this day where village cow herds, 
swine herds and goose herds are pastured on lands held 
in common. 

Representative government has for its foundation the 
markmoot or township assembly beneath the trees and 
under the blue skies of Germany. The complete survival 
in the United States of this political and legislative unit 
is the strength and glory of the nation. The liberties of 
the people will be safe as long as they preserve to them¬ 
selves the right to assemble in town meeting and act as 
a deliberative body. 

The following section of a statute enacted by the Brit¬ 
ish parliament and approved by George III., May 20, 
1774, for the better government of the province of Massa¬ 
chusetts Bay in New England, is more significant and 
instructive than any argument I might make to show 
that in the last resort the town meeting is the great 
bulwark of liberty. 


Section 7 of Chapter 45, 14 George III. 

(30 Pickering’s Stat. at Large, p. 383.) 

“And whereas, by several acts of the general 
court, which have been from time to time enacted 
and passed within the said province, the free* 
holders and inhabitants of the several townships, 


30 


districts and precincts, qualified, as is therein ex¬ 
pressed, are authorized to assemble together, an¬ 
nually, or occasionally, upon notice given, in such 
manner as the said acts direct, for the choice of 
selectmen, constables and other officers, and for 
the making and agreeing upon such necessary 
rules, orders and by-laws, for the directing, man¬ 
aging and ordering the prudential affairs of such 
townships, districts and precincts, and for other 
purposes; and, whereas, a great abuse has been 
made of the power of calling such meetings, and 
the inhabitants have, contrary to the design of 
their institution, been misled to treat upon mat¬ 
ters of the most general concern, and to pass many 
dangerous and unwarrantable resolves; for remedy 
whereof, be it enacted, that from and after the 
said first day of August, one thousand seven hun¬ 
dred and seventy-four, no meeting shall be called 
by the selectmen, or at the request of any number 
of freeholders of any township, district or pre¬ 
cinct, without the leave of the governor or, in his 
absence, of the lieutenant-governor, in writing, 
expressing the special business of the said meeting, 
first had and obtained, except the annual meeting 
in the months of March or May, for the choice of 
selectmen, constables and other officers, or ex¬ 
cept for the choice of persons to fill up the offices 
aforesaid, on the death, or removal of any of the 
persons first elected to such offices, and also, ex¬ 
cept any meeting for the election of a representa¬ 
tive or representatives in the general court; and 
that no other matter shall be treated of at such 
meetings, except the election of their aforesaid 
officers or representatives, nor at any other meet¬ 
ing, except the business expressed in the leave 
given by the governor, or, in his absence, by the 
lieutenant-governor.” 


A pure democracy is not possible except in small com¬ 
munities, like a country township with its town meeting, 
or small cities or villages with their citizens’ meetings. 
In Detroit we had citizens’ meetings to vote the annual 
tax levy, until 1875, when they were found impractic- 


31 


able for a large city, and were displaced by a representa- 
tive board of estimates. 

On close examination these public meetings of all the 
electors of a community are found to be representative 
assemblies and nothing else. All the voters have a right 
to attend but only a small portion of the whole number 
do assemble. 

Those who do not attend are represented by those who 
take enough interest in the affairs of the township, city 
or village to attend. 

When the meeting is organized it is soon found that 
the leading men, who from their intelligence and ability 
are able to do so, carry on the debate and conduct the 
proceedings. Each party or faction is represented by 
one or more leaders, and while each voter present is 
entitled to one vote and no more, it soon appears that 
the leaders have many votes behind them and that the 
meeting is representative in spite of any theory to the 
contrary. 

The same thing happens in the halls of congress. 
Whence came such great parliamentary leaders as Henry 
Clay, Stephen A. Douglas, Thaddeus Stevens and James 
G. Blaine, each of whom was the recognized representa¬ 
tive, not only of his party followers in congress, but at 
times of more than half of all the people. 

Representation by the ablest and best, by those who 
show the most competency, will continue as long as men 
are intelligent enough to recognize ability and worth. It 
is common observation that a legislative body which does 
not contain any strong, resolute and intrepid leaders, 
sinks to medicority and legislative weakness. 

When applied to a populous county or city or to a 
state or a nation, representative government is abso- 


82 


lutelv essential to democracy; without it the sovereign 
powers of the people, would be incapable of intelligent 
and concentrated exercise. 

Representative government gives force to and preserves 
democracy; they are one and inseparable. In a democracy 
the people rule, but the will of the people finds expres¬ 
sion in representative assemblies. In a republican gov¬ 
ernment, such as we have in the United States, the 
people rule, and they find their democracy in the prin¬ 
ciple that one house at least of the legislature, must be 
composed of members directly elected by the people. 
This is the character of the federal and state governments 
established by our American constitutions. 

A pure democracy is an objectionable form of govern¬ 
ment because of its tendency towards anarchy, the fore¬ 
runner of the military dictator, and the despot. The 
fathers of the republic did not intend to establish a 
democracy. Madison undoubtedly expressed their senti¬ 
ments and intentions when he said in the Federalist: 

“A common passion or interest will in almost 
every case, be felt by a majority of the whole; and 
communication and concert results from the form 
of government itself; and there is nothing to 
check the inducements to sacrifice the weaker 
party, or an obnoxious individual. 

“Hence it is, that such democracies have ever 
been spectacles of turbulence and contention; have 
ever been found incompatible with personal secur¬ 
ity, or the rights of property; and have in general 
been as short in their lives, as they have been 
violent in their deaths. 

“Theoretic politicians, who have patronized this 
species of government, have erroneously supposed, 
that by reducing mankind to a perfect equality 
in their political rights, they would at the same 
time, be perfectly equalized and assimilated in 
their possessions, their opinions and passions. 


33 


“A republic, by which I mean a government in 
which the scheme of representation takes place, 
opens a different prospect, and promises the cure 
for which we are seeking.” 

This is as true today as at the time it was written, 
and no candid student of the history of governments 
can deny it. 

The written constitutions adopted in the United States 
safeguard the demoeratical tendencies of the people in 
two ways: 

1. They establish a comprehensive system of 
representation, which compels discussion, cau¬ 
tion and deliberation, with their undoubted ten¬ 
dency to produce wise and just results. 

2. They created a judicial system with power 
in the courts to enforce the great principles of 
reason, truth and justice of the fundamental law. 

These are the bulwarks that Washington, Hamilton, 
Madison and their compeers built to preserve the sov¬ 
ereignty of the people from the pernicious activity of 
those professional politicians who seek popularity to re¬ 
ceive the emoluments of office, to enjoy the lust of power, 
and to satisfy an egotistic ambition, and of those mer¬ 
cenary newspapers and magazines which court popular¬ 
ity to increase their circulation, and add to the profits 
of their advertising columns. 

Of late years there has been a tendency in framing new 
state constitutions or revising old ones, to provide for 
an easy method of amending them, and placing them on 
a level with ordinary acts of the legislature to be altered, 
amended or repealed with every passing breeze. The 
men who framed our first constitutions had a contrary 
opinion. 


o 4 

The Delaware constitution of 1776 provided that “no 
article of the declaration of rights and fundamental rules 
of this state,” and the articles giving the colony the name, 
“The Delaware State,” providing for two houses in the 
legislature, with power to judge of the qualifications and 
elections of their own members, and to elect their own 
speakers, prohibiting the importation of slaves, prohibit¬ 
ing the establishment of any one religious sect in prefer¬ 
ence to another, and making clergymen and preachers of 
the gospel incapable of holding any office while they con¬ 
tinue in the exercise of the pastoral function, “Ought 
ever to be violated on any pretence whatever.” 

Other parts of the constitution could be amended with 
the consent of five-sevenths of the assembly and seven- 
ninths of the legislative council or senate. 

The Pennsylvania constitution of 1776 contained an 
elaborate provision for the submission by a Council of 
Censors of amendments to be ratified by a convention 
elected by the people. The Maryland constitution of 
1776, contained this provision. 

“That this form of government and the Declar¬ 
ation of Rights, and no part thereof, shall be al¬ 
tered, changed or abolished, unless a bill so to 
alter, change or abolish the same, shall pass the 
general assembly, and be published at least three 
months before a new election, and shall be con¬ 
firmed by the General Assembly, after a new 
election of delegates, in the first session after such 
new election; provided that nothing in this form 
of government, which relates to the eastern shore 
particularly, shall at any time hereafter be al¬ 
tered, unless for the alteration and confirmation 
thereof at least two-thirds of all the members 
of each branch of the General Assembly shall con¬ 
cur.” 

The constitution provided for the election of four 
members of the House of Delegates in each county, and 


35 


a method of electing senators by which nine were elect¬ 
ed from the western shore and six from the eastern 
shore of Chesapeake Bay. 

The counties on the western shore grew in population 
much faster than those on the eastern shore, but it was 
found impossible to change the apportionment which re¬ 
sulted in a great constitutional controversy in Maryland. 

The North Carolina constitution of 1776 contained this 
provision: 

“That the Declaration of Rights is hereby de¬ 
clared to be a part of the constitution of this 
state, and ought never to be violated, on any pre¬ 
tense whatever.’’ 

The Vermont constitution of 1777 contained a similar 
provision. 

The Georgia Constitution of 1777 says: 

“No alteration shall be made in this constitu¬ 
tion without petitions from a majority of the 
counties, and the petitions from each county to 
be signed by a majority of voters of each county 
within this state, at which time the assembly shall 
order a convention to be called for that purpose, 
specifying the alterations to be made, according 
to the petitions preferred to the assembly by the 
majority of the counties aforesaid.” 

The New York constitution of 1777 contained no pro¬ 
vision for amendments or for a general revision; nor 
did the South Carolina constitution of 1778. 

The Massachusetts Constitution of 1780 says: 

“In order to more effectually adhere to the 
principles of the constitution and to correct those 
violations which by any means may be made 
therein, as wrnll as to form such alterations as 


from experience shall be found necessary, the 
general court (legislature) which will be in the 
year of our Lord one thousand and seven hun¬ 
dred and ninety-five, shall issue precepts to the 
selectmen of the several towns and to the as¬ 
sessors of the unincorporated plantations, for 
the purpose of collecting their sentiments on 
the necessity or expediency of revising the consti- 
tion in order to amendments. 

“And if it shall appear by the returns made 
that two-thirds of the qualified voters through¬ 
out the state, who shall assemble and vote in 
consequence of said precepts, are in favor of such 
revision or amendment, the general court shall 
issue precepts or direct them to be issued from 
the secretary’s office to the several towns to elect 
delegates to meet in convention for the purpose 
aforesaid.” 

The Vermont constitution of 1777, and 1786 adopted 
the Pennsylvania provision. 

The New Hampshire constitution of 1784 made use 
of the Massachusetts provision in a modified form. 

The Federal convention of 1787 provided for amend¬ 
ments proposed by two-thirds of both Houses, and 
ratified by the legislatures of three-fourths of the sev¬ 
eral states, or by conventions in three-fourths thereof, 
as the one or the other needed of ratification may be 
proposed by congress. 

A convention for proposing amendments is required 
to be called on the application of the legislatures of two- 
thirds of the several states. 

Since then the Federal plan of a two-thirds vote of 
each house, has very generally been adopted by the 
states, accompanied with a ratification by a popular 
vote. In some states a majority of each house is suffi- 


37 


cient, but the proposed amendment must be approved 
by two successive legislatures. 

It is plain to be seen that the object of placing re¬ 
strictions on the power to amend is to secure care and 
deliberation, and to prevent hasty and ill considered 
action. 

In 1902 Oregon started a movement in another di¬ 
rection by adopting a provision for amendments by 
the initiative and referendum method. 

South Dakota had adopted the initiative and referen¬ 
dum for the enactment of laws in 1898, but Oregon went 
a step farther, and included constitutional amendments. 
The original constitution of Oregon provided for 
amendments by a majority vote of each house of two suc¬ 
cessive legislatures, but one of the things accomplished 
by the initiative and referendum was to omit one of 
the two successive legislatures, thereby placing the con¬ 
stitution on the same level as ordinary legislative en¬ 
actments. 

The avowed object of the initiative and referendum is 
to reduce the government to a pure democracy, with the 
town-meeting, citizens’ meetings and other public meet¬ 
ings held for a comparison of views, discussion and 
deliberation, heretofore incident to democracies, elimi¬ 
nated. 

It is doubtful whether a more objectionable form of 
popular government could be devised. The theory of 
the initiative and referendum is that the people them¬ 
selves, without the intervention or advice of their rep¬ 
resentatives, initiate their own laws and constitutional 
amendments; but such is not the fact. A coterie or 
cabal representing no one but themselves can frame a 
law or an amendment, such as may please their purpose, 


:-;8 

and if they can secure a small fraction of the qualified 
electors, to sign petitions for it, it must be submitted to 
a popular vote, without the intervention of any deliber¬ 
ative body whatever. 

The initiative and referendum has not one redeeming 
feature; it is one of the hysterical movements of the 
present time. 

Governors are prohibited from interposing their veto, 
and it is seriously proposed to provide in addition for 
the recall of judges and judicial decisions on constitu¬ 
tional questions. 

Our expectation is that this kind of government will 
be short lived; that the experiment will be found want¬ 
ing in merit, that it will prove obnoxious to sane and 
sound government, and that desuetude will be its grave. 


BIBLIOGRAPHY—“The Constitutional Convention,” by 
John Alexander Jameson, a Chicago judge and Professor of 
Constitutional Law in the University of Chicago, published by 
Callaghan & Cutter, in 1867, is a valuable work. 

His chapter on sovereignty is exhaustive and instructive, 
with quotations from Rutherford’s “Institutes of Natural Law,” 
Dr. Lieber’s “Political Ethics,” Austin’s “Province of Juris¬ 
prudence,” and other authors, and from court decisions. 

“Popular Government,” by Henry Sumner Maine, con¬ 
sists of four essays, on “The Prospects of Popular Govern¬ 
ment,” “The Nature of Democracy,” “The Age of Progress,” 
and “The Constitution of the United States.” 

Referring to the restrictions of our fundamental law he 

says: 

“The powers and disabilities attached to the 
United States and the several states by the Federal 


39 


Constitution, and placed under the protection of the 
deliberately contrived securities we have described, 
have determined the whole course of American history. 
That history began, as all its record abundantly show, 
in a condition of society produced by war and revo¬ 
lution, which might have condemned the great North¬ 
ern Republic to a fate not unlike that of her disorderly 
sisters of South America. But the provisions of the 
constitution have acted on her like those dams and 
dykes which strike the eye of the traveler along the 
Rhine, controlling the course of a mighty river which 
begins amid mountain torrents, and turning it into one 
of the most equable water ways in the world.” 

Further on he mentions the provision prohibiting any law 
impairing the obligation of contracts, and then says: 

“We may usefully bear in mind that until this 
prohibition, as interpreted by the Federal courts, is 
got rid of certain communistic schemes of American 
origin, which are said to have become attractive to the 
English labouring classes because they are supposed to 
proceed from the bosom of a democratic community, 
have about as much prospect of obtaining practical 
realization in the United States as the vision of a 
Cloud-Cuckoo-borough to be built by the birds be¬ 
tween earth and sky.” 


“Representative Government,” by John Stuart Mill, re¬ 
published by Longmans, Green & Co., of London and New 
York, in 1907, is an important contribution to our knowledge 
of the subject. He states his general proposition as follows: 

“There is no difficulty in showing that the ideally 
best form of government is that in which the sov¬ 
ereignty, or supreme controlling power in the last re¬ 
sort is vested in the entire aggregate of the community; 
every citizen not only having a voice in the exercise 
of that ultimate sovereignty, but being, at least oc¬ 
casionally, called on to take an actual part in the 
government, by the personal discharge of some public 
function, local or general.” 


























































































































































































































































































































































41 


II. 

Division of Powers 

Virginia constitution of 1776 and the Massachusetts con¬ 
stitution of 1780 divide their state governments into three de¬ 
partments, the legislative, executive and judicative—The con¬ 
stitution of the United States is to the same effect—And so 
are all the state constitutions—But nearly all of these constitu¬ 
tions give the executive a qualified negative on the legislative 
—Review of authorities. 

The Virginia constitution of 1776 declares: 

“The legislative, executive, and judiciary de¬ 
partments shall be separate and distinct, so that 
neither exercise the powers properly belonging 
to the other: nor shall any person exercise the 
powers of more than one of them at the same 
time, except that the Justices of the County 
Courts shall be eligible to either House of Assem¬ 
bly.” 

The Massachusetts Constitution of 1780 says: 

“In the government of this commonwealth the 
legislative department shall never exercise the 
executive and judicial powers, or either of them: 
the executive shall never exercise the legislative 
and judicial powers, or either of them: the judi¬ 
cial shall never exercise the legislative and execu¬ 
tive powers or either of them: to the end it may he 
a government of Imvs and not of men ” 

The Constitution of the United States does not con¬ 
tain any express provision on the subject, but accom¬ 
plishes the same result by vesting the legislative powers 
granted by it, in a Congress consisting of a senate and 
house of representatives, the executive power in a Pres- 


42 


ident, and the judicial power in one Supreme Court and 
in such inferior courts as the congress may from time 
to time ordain and establish. 

All the state constitutions are to the same effect, 
either by express provision, or by an actual separation 
of the departments, or by both methods, so that the 
division of the powers of government into the legisla¬ 
tive, executive and judicative, is an accepted principle 
of the constitutional law of this country, with the 
notable exception that the constitution of the United 
States, and those of some of the states, allow the Presi¬ 
dent or Governor to participate in legislation by giving 
him a qualified veto power, and under certain circum¬ 
stances an absolute veto. Thus the Constitution of the 
United States provides that the veto of the President 
may be overcome by a two-thirds vote of each house, but 
it further provides that the President must send his veto 
message to the house in which the bill originated within 
ten days, Sundays excepted, from the time it is pre¬ 
sented to him for approval. If the bill is not returned 
by the President within the ten days, 

“the same shall become a law, in like manner as 
if he had signed it, unless the Congress by their 
adjournment prevent its return, in which case it 
shall not become a law.” 

Hence it is, that as to bills passed by Congress and 
presented to the President during the last ten days of a 
session of Congress the President has an absolute veto. 

All he has to do is to withhold his signature. Such 
vetoes are derisively called “Pocket vetoes,” but they 
are absolute in their effect, and have frequently been 
made use of by our presidents. 


43 


The constitution of Michigan contains similar pro¬ 
visions, with the additional very unusual provision that 
the governor may veto 

“any item or items of any bill making appropria¬ 
tions of money embracing distinct items.” 

In England the veto power of the King has entirely 
disappeared, and the executive power has passed into 
the hands of a responsible ministry, who are the leaders 
of the dominant party in the Parliament, in which they 
have seats, thereby commingling the legislative and exec¬ 
utive powers, in violation of the maxim that the legis¬ 
lative, executive and judicial powers of the government 
should not be exercised at the same time by the same 
persons. 

In the United States the negative of the executive on 
the legislative has been preserved, with a tendency to 
increase the power of the executive, not only in the gen¬ 
eral government, but also in the states, and in our 
municipal governments. 

The Kings of England reign but they do not rule. 

In the United States the President rules but does not 
reign; and it is more and more expected of him, that he 
will be the boss, not only of the Congress, but also of 
the Supreme Court. Associated with our tendency 
towards an extreme democracy, is the antagonistic but 
inevitable tendency towards a strong executive, clothed 
with an abundance of royal and monarchial preroga¬ 
tives. 

I will have more to say on this subject when we come 
to consider the executive power. At present we are 


44 


more interested in the division of powers as it does 
exist in the United States as a legal restriction on the 
different departments of the government. 

This division of the powers of government is not an 
arbitrary one, but is based upon a real and substantial 
difference in the nature of the powers exercised by a 
government. 

The legislative power is the power to make the law, 
to repeal old laws and make new laws. The executive 
power is the power to administer and enforce the laws 
made by the legislative power. And the judicial power 
is the power to interpret, expound and apply the law 
in controversies between persons, and in public suits 
and prosecutions for violations of the law. 

While these definitions are ordinarily sufficient to 
determine whether any given action of the government 
is properly within the province of the legislative, the 
executive or the judicative, there are instances where it 
is difficult to draw the line, and considerable confusion 
has resulted, even in the Supreme Court of the United 
States. 

We can best study this subject by reviewing some 
of the decisions. 

The Pension Act of March 23, 1792, imposed on the 
Circuit Courts of the United States the duty of allowing, 
and fixing, within certain limits, the amounts of the pen¬ 
sions to be paid soldiers in the revolutionary war. 

The Circuit Courts were required to report to the 
Secretary of War, who was authorized if he had cause 


45 


to suspect imposition or mistake to withhold the pen¬ 
sion. 

Two judges of the Supreme Court and a district judge 
were the judges of the Circuit Courts. 

The Circuit Court of the district of New York, con¬ 
sisting of Chief Justice Jay, Justice Cushing, and 
Duane, District Judge, held that the duties assigned to 
the circuit courts were not judicial or directed to be 
performed judicially, and the act was invalid, but they 
thought the judges could act as commissioners and in 
that capacity pass on pension claims. 

The Circuit Court for the district of Pennsylvania, 
consisting of Justices Wilson and Blair, and Peters, 
District Judge, held that the duties imposed by the act 
were not judicial and that the court could not proceed 
under the act. 

The Circuit Court of the district of North Carolina, 
consisting of Justice Iredel and Sitgreaves, District 
Judge, held the duties were not judicial, and took under 
advisement the question whether the judges could act 
as commissioners. 

The Attorney General of the United States then 
applied to the Supreme Court, in behalf of William 
Hayburn, for a mandamus to compel the Circuit Court 
for the district of Pennsylvania to proceed to examine 
Hayburn’s pension claim. 2 Dal. 409. 

The Supreme Court took the case under advisement, 
but never rendered a decision because another way of 
allowing pensions was provided by Congress by an act 
approved February 28, 1793, amending the pension act. 


46 


The amendment saved any legal adjudications that 
had been made by the judges as commissioners, and 
directed the Attorney General and Secretary of War to 
obtain an adjudication by the Supreme Court. 

Yale Todd had been allowed and paid a pension, and 
the Attorney General brought an action against him, 
to recover the money as illegally paid out of the treasury. 

The Supreme Court, Chief Justice Jay, and Justices 
Cushing, Wilson, Blair and Paterson, being present, 
entered a judgment in favor of the United States. 

In the subsequent case of United States vs. Ferriera, 
13 How. 40, decided in 1851, the court reached the same 
conclusion in regard to the allowance of claims by a 
district judge, under the treaty with Spain ceding Flor¬ 
ida, and Chief Justice Taney, in a note made a report 
of the case of Yale Todd, and concluded as follows: 

“The result oi the opinions expressed by the 
judges of the Supreme Court or that day in the 
note to Rayburn’s case, and in the case of the 
United States vs. Todd, is this: 

“1. That the power proposed to be conferred 
on the Circuit Courts of the United States by the 
Act of 1792 was not judicial power within the 
meaning of the Constitution, and was, therefore, 
unconstitutional, and could not lawfully be exer¬ 
cised by the courts. 

“2. That as the Act of Congress intended to 
confer the power on the courts as a judicial 
function, it could not be construed as an authority 
to the judges composing the court to exercise the 
power out of court in the character of commis¬ 
sioners. 

“3. That money paid under a certificate from 
persons not authorized bv law to eive it. might 
be recovered back by the United States.” 


47 


Why is the allowance of a claim against the govern¬ 
ment not within the judicial power of the Federal 
courts? Simply because it is essential to a judicial 
adjudication that there be a party plaintiff and a party 
defendant and an issue of fact or law. 

A court or judge acting on an exparte application 
must necessarily act as the attorney of the United States, 
and in reality the government would be deciding its own 
case. Such is the attitude of an auditing officer, and it 
is also the attitude of congress, when in the exercise 
of its legislative power, it allows a claim and makes an 
appropriation to pay it. 

It is a maxim of the law, governing the judicial power, 
that no one can be a judge in his own case. 

In the matter of the allowance of Ferriera’s claim by 
the District Judge in Florida, the United States District 
Attorney appeared in behalf of the United States and 
opposed the allowance. 

The Supreme Court of the United States disposed of 
that feature of the case as follows: 

“It would seem, indeed, in this case, that the 
District Judge acted under the erroneous opinion 
that he was exercising judicial power strictly 
speaking under the Constitution, and has given 
to these proceedings as much of the form of pro¬ 
ceedings in a court of justice as was practicable. 
A petition in form is filed by the claimant; and 
the judge states in his opinion that the District 
Attorney appeared for the United States and 
argued the case, and prayed an appeal. But the 
Acts of Congress require no petition The claim¬ 
ant had nothing to do, but to present his claim to 
the judge with the vouchers and evidence to sup- 


48 


port it. The District Attorney had no right to 
enter an appearance for the United States, so as 
to make them a party to the proceedings, and to 
authorize a judgment against them. It was no 
doubt his duty as a public officer, if he knew of 
any evidence against the claim, or of any objection 
to the evidence produced by the claimant, to bring 
it before the judge, in order that he might con¬ 
sider it, and report it to the secretary. But the 
Acts of Congress certainly do not authorize him 
to convert a proceeding before a commissioner into 
a judicial one, nor to bring an appeal from his 
award before this court.” 

Another feature of the judicial power is that an ad¬ 
judication (subject to review by the court of last resort), 
is conclusive and final. 

Neither the executive or the legislative can be author¬ 
ized to review, modify or reverse a judicial decision. The 
very essence of the judicial poyer is that it decides the 
matter in controversy, conclusively and finally. 

Bound to teach the constitutional law of the United 
States as it is, I am also bound to teach the constitu¬ 
tional law of this state as it is. 

A Michigan statute provides that the state shall pay 
the fees and expenses of holding inquests on the dead 
bodies of strangers, “the account of such expenses and 
fees being first allowed by the Circuit Court of the 
county.” (3 C. L. 1897, Sec. 11828. ) 

The language is identical with that of the Pension 
Act of 1792, held unconstitutional by the Supreme Court 
of the United States, yet, the Supreme Court of Michi¬ 
gan held it valid. Mr. John J. Speed, as circuit judge, 
to his credit, refused to act on a coroner’s account sub- 


49 


mitted to him, and the Supreme Court granted a man¬ 
damus compelling him to do so. (Locke vs. Speed, 62 
Mich., 408.) 

Judges Sherwood, Champlin and Morse, concurred 
in this decision. Judge Campbell, dissented, saying: 

“I do not think a judge can be compelled, un¬ 
less he chooses, to perform duties not judicial.” 

The question came up again in 1905 in ToepeVs Case, 
139 Mich., 85, and the court followed the prior decision. 

In 1893 the Supreme Court of the United States had 
reaffirmed the decision of the court in United States vs. 
Yale Todd (In re Sanborn, 148 U. S. 222). 

You may wonder how it was that these learned Michi¬ 
gan judges should disagree with the first and subsequent 
judges of the Supreme Court of the United States. 

Of the first justices of the Federal Supreme Court 
who passed on the question, Blair, Wilson and Paterson 
were members of the Federal convention of 1787, and 
signed the Constitution of the United States. I refer to 
this to show the tenacity with which the “Fathers of the 
Republic” stuck to the doctrine that the three depart¬ 
ments of the government should be kept distinct from 
each other. 

The only explanation that can be made of the views 
of the concurring Michigan judges is that they were not 
well grounded, had never heard of the Federal decisions, 
and were oblivious to the provision of the state consti¬ 
tution expressly prohibiting the courts from exercising 
any power other than the judicial, “except in the cases 
expressly provided in this constitution,” and that as to 


50 


the Circuit Courts, the only exception is that the Cir¬ 
cuit Judges “may fill any vacancy in the offices of county 
clerk or prosecuting attorney within their respective 
jurisdictions, but shall not exercise any other power of 
appointment to public office.” 

As is well known to the profession in this state Judge 
Campbell was better grounded than the other judges, and 
intuitively reached a correct conclusion. Ability and 
learning, and a well disciplined mind produce the hap¬ 
piest and best results on the bench, and make the most 
complete and thorough going lawyer. 

It should be the object and aim of every student at 
law, to become thoroughly grounded, especially in the 
constitutional law of his state and country. 

An act of Congress approved March 1, 1809, prohibited 
the importation into the United States of any goods, 
wares or merchandise whatever from any port or place 
situated in Great Britain or Ireland or in any of the 
colonies or dependencies of Great Britain, or from any 
port or place situated in France or in any of her colon¬ 
ies or dependencies, nor from any port or place in the 
actual possession of either Great Britain or France. 

The 11th section of the Act provided: 

“that the President of the United States be and 
he hereby is authorized, in case either France or 
Great Britain shall so revoke or modify her edicts 
as that they shall cease to violate the neutral 
commerce of the United States, to declare the 
same by proclamation, after which the trade sus¬ 
pended by this act and by the act laying an em¬ 
bargo, etc., may be renewed with the nation so 
doing.” 


51 


That act expired by its own limitation on the 1st of 
May, 1810, on which day Congress passed an act, the 4th 
section of which enacted “that in case either Great 
Britain or France shall before the 31st of March next 
so revoke or modify her edict as that they shall cease 
to violate the neutra] commerce of the United States, 
which fact the President of the United States shall de¬ 
clare by proclamation, and if the other nation shall not 
within three months thereafter so revoke or modify her 
edict in like manner” then the act prohibiting importa¬ 
tions should be revived “from and after the expiration 
of three months from the date of the proclamation” of 
the President, that the one or the other of said nations 
has revoked or modified her edicts against the United 
States. 

The President, the 2d of November, 1810, issued his 
proclamation declaring that France had so revoked or 
modified her edict as that they cease to violate the 
natural commerce of the United States. 

The question was whether the nonintercourse act was 
revived as against Great Britain three months after the 
date of the proclamation of the President, that is, 
whether the nonintercourse act was in force on the 2d 
day of February, 1811. 

The Supreme Court of the United States in the case 
of the Brig Aurora, 7 Cranch, 382, held that the non¬ 
intercourse act was revived and in full force on the 2d 
of February, 1811. 

It will be observed that the original act provided that 
it should be suspended on the happening of a certain 
event which was to be determined by the President and 


evidenced by Iris proclamation, and that the revival act 
was not to take effect until the happening of a certain 
event which was likewise to be determined and authen¬ 
ticated by the proclamation of the President. Counsel 
in the case discussed the question whether this legislation 
did not confer legislative power on the executive, but the 
court in a short opinion by Justice Johnson, paid little 
attention to that question. The court assumed that Con¬ 
gress could determine when and upon what contingencies 
an act should take effect, or be suspended. 

The tariff act of October 1, 1890, put sugar, molasses, 
coffee, tea and hides on the free list, but provided that 
after January 1, 1892, 

“whenever and so often as the President shall be 
satisfied that the government of any country pro¬ 
ducing and exporting sugar, molasses, coffee, tea 
and hides, raw and uncured or any of such articles, 
imposes duties or other exaction upon the agri¬ 
cultural or other products of the United States, 
which in view of the free introduction of such 
sugar, molasses, coffee, tea and hides into the 
United States, he may deem to be reciprocally un¬ 
equal and unreasonable, he shall have power, and 
it shall be his duty to suspend by a proclamation 
to that effect, the provisions of this act relating to 
the free introduction of such sugar, molasses, 
coffee, tea and hides, the production of such coun¬ 
try for such time as he shall deem just, and in 
such case and during such suspension, duties shall 
be levied, collected and paid upon sugar, molasses, 
coffee, tea and hides, the product of or exported 
from such designated country, as follows, name¬ 
ly—” 

The act then proceeded to fix a rate of duty on each 
of said articles. 


The Supreme Court of the United States in Field vs. 


53 


Clark, 143 U. S. 649, sustained this legislation on the 
authority of the case of the Brig Aurora and a number 
of legislative precedents. Mr. Justice Lamar with the 
concurrence of Chief Justice Fuller, tiled a vigorous dis¬ 
senting opinion in which they undertook to show that 
the precedents relied upon by the majority of the court, 
fell far short of the discretion vested in the executive by 
the tariff act of 1890. 

Both opinions held that the Congress cannot delegate 
its legislative authority, but disagreed upon the question 
whether the legislative power was in this instance dele¬ 
gated. 

Where a broad discretion is given to determine whether 
an act of congress, or of the state legislature, is to take 
effect, or is to be suspended, it requires some mental 
effort to understand why there is not a delegation of 
legislative power; but there are a large number of cases 
in the law reports where this kind of legislation has been 
sustained. 

A typical case is the Michigan Local Option Law, 
which is a prohibitory liquor law, but whether it is to be 
enforced in any county depends on an affirmative vote 
of the electors, and if once adopted it may be suspended 
by a negative vote of the electors. Elections under the 
act may be held every two years, on initiative petitions, 
canvassed by the county board of supervisors. 

This law was sustained by the state supreme court. 
(Peek vs. Township Board, 82 Mich., 393.) Judge Cham- 
plin wrote the opinion of the court and Judge Morse 
tiled a dissenting opinion. You should read both opin¬ 
ions as they show the mental processes by which our 
learned judges reach different conclusions. 


54 


At the common law common carriers were required to 
carry things and persons for reasonable compensation. 
If a carrier exacted unreasonable charges an action 
would lie against him, and thus it was that the reason¬ 
ableness of passenger and freight rates was a judicial 
question. 

In the United States we have two kinds of common 
carriers, (1) those whose operations are confined to a 
single state, and are subject to the state government ; 
and (2) those who operate between two or more states, 
and are subject to the power of congress “to regulate 
commerce with foreign nations and among the several 
states, and with the Indian tribes.” 

The question whether a state legislature could fix by 
law the maximum charges of common carriers, ware¬ 
housemen, and others engaged in a public service, was 
decided in the affirmative by the Supreme Court of the 
United States in Munn vs. Illinois, 94 U. S. 113, and in 
the railroad cases decided at the same time. 

In the Munn Case the court said: 

“We know that this is a power which may be 
abused; but that is no argument against its exis¬ 
tence. For protection against abuses by Legis¬ 
latures the people must resort to the polls and not 
to the courts.” 

And in one of the railroad cases the court said: 

“As to the claim that the courts must decide 
what is reasonable, and not the legislature. This 
is not new to this case. It has been fully con¬ 
sidered in Munn vs. People of Illinois. Where 
property has been clothed with a public interest, 
the legislature may fix a limit to that which shall 


55 


in law be reasonable for its use. If it has been 
improperly fixed the legislature and not the courts, 
must be appealed to for the change.” 

Here we have a flat footed and unequivocal decision 
by the Supreme Court of the United States that govern¬ 
mental rate fixing is a legislative function and nothing 
else; a matter wholly within the province of Congress 
and the state legislatures, and not subject to judicial 
cognizance. 

It is not to be wondered at that the legislatures of the 
states proceeded to exercise the power the court by its 
solemn judgment had vested in them. 

Finding some practical difficulties in fixing schedules 
of rates in acts of the legislature, some of the state legis¬ 
latures created railroad commissions, consisting of a 
board of executive officers, clothed with power to de¬ 
termine the rates railroad companies were to charge. 
This legislation presented the question whether the legis¬ 
lative power was not delegated to the executive depart¬ 
ment, but as there is nothing in the Constitution of the 
United States preventing the states from commingling 
the powers of government, the Supreme Court of the 
United States had no jurisdiction to review the decisions 
of the state courts on that question. 

In 1884 the Mississippi legislature passed an act for 
the regulation of freight and passenger rates on rail¬ 
roads and creating a commission to supervise the same. 
It authorized the commission to establish rates, and the 
objection was made that it conferred both legislative 
and judicial power on the commission in violation of the 
constitution of the state. 


50 


The state supreme court disposed of that objection 
with these words: 

“The Act creating the railroad commission is 
not violative of the Fourteenth Amendment of the 
Constitution of the United States, or of any pro¬ 
vision of the Constitution of the State, in that it 
creates a commission and charges it with the duty 
of supervising railroads.” ( Railroad Commission¬ 
ers vs. Yazoo and Mississippi R. R. Co., 62 Miss., 
607, 645.) 

The Supreme Court of the United States in disposing 
of the same objection quoted the latter part of the above, 
and then said : 

“To this we agree and that is all that is neces¬ 
sary to decide this case.” ( Railroad Commission 
Cases, 116 U. S. 307, 336). 

In 1887 the Minnesota legislature passed an act creat¬ 
ing a commission and authorizing it to fix rates, which 
were to be conclusive and final and beyond judicial in¬ 
quiry. 

The state Supreme Court was of the opinion that the 
powers and duties, conferred on the commission were 
not legislative, but executive, and assuming that the 
Supreme Court of the United States meant what it said 
in the Munn case, held that the rates fixed by the com¬ 
mission were final. {State vs. Chicago M. & St. P. R ., 
38 Minn., 281.) 

The Supreme Court of Georgia had theretofore held 
that the duties of the railroad commission of that state 
were executive and not legislative. {Georgia R. Co. vs. 
Smith, 70 Ga., 694.) 


The Minnesota case was reviewed by the Supreme 


57 


Court of the United States, and the judgment of the 
state court so far as it had held, that the determination 
of the railroad commission was conclusive and final was 
reversed. (Chicago M. & St. P. R. Co. vs« Minnesota, 
134 U. S., 418.) 

The court said: 

“The question of the reasonableness of a rate of 
charge for transportation by a railroad company, 
involving as it does the element of reasonableness 
both as regards the company and as regards the 
public, is eminently a question for judicial in¬ 
vestigation, requiring due process of law for its 
determination. If the company is deprived of the 
power of charging reasonable rates for the use 
of its property, and such deprivation takes place 
in the absence of an investigation by judicial ma¬ 
chinery, it is deprived of the lawful use of its 
property, and thus, in substance and effect, of the 
property itself, without due process of law and 
in violation of the Constitution of the United 
States; and in so far as it is thus deprived, while 
other persons are permitted to receive reasonable 
profits upon their invested capital, the company is 
deprived of the equal protection of the laws.” 

Justice Bradley with the concurrence of Justices Gray 
and Lamar filed a dissenting opinion, in which he said: 

“But it is said that all charges should be rea¬ 
sonable, and that none but reasonable charges 
can be exacted; and it is urged that what is a 
reasonable charge is a judicial question. On the 
contrary, it is pre-eminently a legislative one, in¬ 
volving considerations of policy as well as of re¬ 
muneration ; and is usually determined by the 
legislature, by fixing a maximum of charges in 
the charter of the company, or afterwards, if its 
hands are not tied by contract. If this maximum 
is not exceeded, the courts cannot interfere. When 
the rates are not thus determined, they are left 


to the discretion of the company, subject to the 
express or implied condition that they shall be 
reasonable; express when so declared by statute; 
implied by the common law, when the statute is 
silent; and the common law has effect by virtue of 
the legislative will. 

“Thus, the legislature either fixes the charges 
at rates which it deems reasonable, or merely de-: 
dares that they shall be reasonable; and it is only 
in the latter case, where what is reasonable is left 
open, that the courts have jurisdiction of the sub¬ 
ject. I repeat: When the legislature declares 
that the charges shall be reasonable, or, which is 
the same thing, allows the common-law rule to 
that effect to prevail, and leaves the matter there, 
then resort may be had to the courts to inquire 
judicially whether the charges are reasonable. 
Then, and not till then, is it a judicial question. 
But the legislature has the right, and it is its 
prerogative, if it chooses to exercise it, to de¬ 
clare what is reasonable. 

“This is just where I differ from the majority 
of the court. They say in effect, if not in terms, 
that the final tribunal of arbitrament is the judi¬ 
ciary; I say it is the legislature. I hold that it 
is a legislative question, not a judicial one, unless 
the legislature or the law (which is the same 
thing) has made it judicial, by prescribing the 
rule that the charges shall be reasonable, and 
leaving it there.” 


In 1887 Congress passed an act to regulate commerce 
and creating the Interstate Commerce Commission, but 
it did not confer any power on the commission to fix 
rates. The act provided that all charges for transporta¬ 
tion of passengers or property should be reasonable and 
just, and that unjust and unreasonable charges should 
be unlawful. It prohibited rebates, drawbacks, or any 
kind of discrimination, or departure from the schedules 
or tariffs of rates the carriers were required to publish 


59 


and file with the commission, but left the carriers at lib¬ 
erty to fix their own rates. 

An effort w as made to so construe the act that the com¬ 
mission would have power to fix rates in advance, that 
is, for the future, but the Supreme Court held that the 
commission had no such power. (Interstate Commerce 
Com . vs. Railway Co., 167 U. S., 479.) 

The opinion of the court by Justice Brewer at page 
499, cited prior decisions of the court to this proposition: 

“It is one thing to inquire whether the rates 
wilich have been charged and collected are reason¬ 
able—that is a judicial act; but an entirely differ¬ 
ent thing to prescribe rates wdiich shall be charged 
in the future—that is a legislative act.” 

Further on, at page 505: 

“The power to prescribe a tariff of rates for 
carriage by a common carrier is a legislative and 
not an administrative or judicial function.” * * * 

“That congress has transferred such a power 
to any administrative body is not to be presumed 
or implied from any doubtful and uncertain lan¬ 
guage.” * * * 

“Incorporating into a statute the common law r 
obligation resting upon the carrier to make all its 
charges reasonable and just, and directing the com¬ 
mission to execute and enforce the provisions of 
the Act, does not by implication carry to the com¬ 
mission or invest it with the power to exercise the 
legislative function of prescribing rates which 
shall control in the future.” 

In 1906 Congress passed the Hepburn Act amending 
the act to regulate commerce and giving the Interstate 
Commerce Commission full authority 

“to determine and prescribe what will be just 


60 


and reasonable rate or rates, charge or charges 
to be thereafter observed in such case as the 
maximum to be charged.” 

If the authority conferred on the Commission is to be 
regarded as a legislative power, the above provision is 
unconstitutional, for it is perfectly clear and beyond 
question that the legislative power of the Congress can 
not be delegated. The Supreme Court of the United 
States has not directly characterized the power of the 
Interstate Commerce Commission to fix rates and charges 
for the future, but from references in the opinions of the 
court in prior and subsequent cases to the commission 
as an administrative body, it can be inferred that the 
court regards the power of the commission as executive, 
in that it is authorized to apply, enforce and execute 
the mandate of the legislative department of the govern¬ 
ment that the rates and charges of common carriers 
shall be just and reasonable. This view of the power of 
the commission is intelligible and is in accord with the 
decisions of the state courts on the question, and it 
would settle the law on the subject if it were not for a 
subsequent decision of the Supreme Court of the United 
States to be considered in my next lecture. 


BIBLIOGRAPHY. Politics,” by Aristotle, the great 
Grecian philosopher, was written by him about 330 B. C. A 
translation by B. Jowett, Professor of Greek in the University 
of Oxford, was published by the Clarendon Press, Oxford, in 
1883. In Lib. IV, C. 14, Aristotle classifies the three ele¬ 
ments of a well ordered state under three heads: (1 ) the De¬ 
liberative; (2) the Administrative; (3) the Judicial. 

‘‘Spirit of Laws,” by Baron De. Montesquieu, was first pub¬ 
lished in 1 748, and a translation by Thomas Nugent of Gray’s 


61 


Inn, London, was published by Robert Clark & Co., of Cin¬ 
cinnati, Ohio, in 1873. 

Montesquieu at p. 174, vol. 1, makes this statement of the 
reasons which make this division of government necessary. 

“When the legislative and executive powers are united in 
the same person or in the same body of magistrates, there can 
be no liberty; because apprehensions may arise, lest the same 
monarch or senate should enact tyrannical laws to execute 
them in a tyrannical manner. 

“Again there is no liberty, if the power of judging be not 
separated from the legislative and executive powers. Were 
it joined with the legislative, the life and liberty of the subject 
would be exposed to arbitrary control; for the judge would 
be then the legislator. Were it joined to the executive power 
the judge might behave with all the violence of an oppressor. 

“There would be an end of everything were the same man 
or the same body whether of the nobles or of the people, 
were to exercise those three powers, that of enacting laws, 
that of executing the public resolutions, and that of judging 
the crimes or differences of individuals.” 











G3 


III. 

Division of Powers. 

(Continued) 

Survival of doctrine that fixing rates is a legislative function 
—A Virginia case—Common law remedies abolished by In¬ 
terstate Commerce Act—Ministerial power not the same as 
executive—Whether under the Michigan Constitution of 1908, 
an act of the legislature is to take immediate effect or not is a 
legislative and not a judicial question. 

The Virginia Constitution of 1902 says: 

“Except as hereinafter provided, the legisla¬ 
tive, executive and judiciary departments shall 
be separate and distinct, so that neither exercise 
the powers properly belonging to either of the 
others, nor any person exercise the power of more 
than one of them at the same time.” 

A subsequent article entitled “Corporations” does 
make a most sweeping exception. It is the most compre¬ 
hensive enactment for the regulation and control of 
corporations, especially transportation and transmission 
companies, ever put into a constitution. It creates a 
State Corporation Commission of three members, and 
vests in the commission, as far as the rates and charges 
of common carriers are concerned, all of the legislative, 
executive and judicial powers of the State government. 
In fact it says: 

“The authority of the commission (subject to 
review on appeal as hereinafter provided), to pre¬ 
scribe rates, charges and classifications of traffic 
for transportation and transmission companies 
shall be paramount ; but its authority to prescribe 
other rules, regulations or requirements for cor- 


porations or other persons shall be subject to the 
superior authority of the General Assembly to 
legislate thereon by general laws.” 

Appeals are authorized to the Virginia Supreme 
Court of Appeals, but no new or additional evidence 
can be introduced in the Appellate Court. The Court 
can order a further investigation by the commission and 
any additional evidence must be certified to the Court 
before the appeal is finally decided. 

“Whenever the Court, upon appeal, shall reverse 
an order of the commission affecting the rates, 
charges or the classification of traffic bf any 
transportation or transmission company, it shall, 
at the same time substitute therefor, such order 
as, in its opinion, the commission should have 
made at the time of entering the order appealed 
from; otherwise the reversal order shall not be 
valid.” 

Acting under the authority so conferred on it the 
State Corporation Commission made an order fixing the 
passenger jrate on all the main lines of railroad in the 
State at two cents a, mile. 

Instead of appealing to the State Supreme Court of 
Appeals, the railroad companies filed bills in the United 
States Circuit Court to enjoin the Corporation Com¬ 
mission from taking any steps to enforce the order, 
alleging that the rate of two cents a mile was unreason¬ 
able and confiscatory of the property of the companies 
in the violation of the due process of law clause of the 
Fourteenth Amendment of the Constitution of the United 
States. 

The Corporation Commission filed demurrers and pleas 
in which they put forward that the proceedings before 
the commission were in a court of the State, and the 


order of the commission could not be enjoined under 
Sec. 720 of the Jtev. Stat, of the United States, which 

reads: 

“The writ of injunction shall not be granted by 
any court of the United States to stay proceedings 
in any court of a state, except in cases where such 
injunction may be authorized by any law relating 
to proceedings in bankruptcy.” 

The United States Circuit Court granted the injunction 
prayed, and the commission appealed to the Supreme 
Court of the United States (Prentiss vs. Atlantic Coast 
Line , 211 U. S., 210). 

Mr. Justice Holmes delivering the opinion of the court 
held: 

1. That the proceedings before the commission were 
legislative and not judicial. 

“A judicial inquiry investigates, declares and 
enforces liabilities as they stand on present or 
past facts and under laws supposed already to 
exist. That is its purpose and end. Legislation 
on the other hand looks to the future and changes 
existing conditions by making a new rule to be ap¬ 
plied thereafter to all or some part of those sub¬ 
ject to its power. The establishment of a rate is 
the making of a rule for the future, and therefore 
is an act legislative and not judicial in kind.” 

2. The State Supreme Court of Appeals when acting 
on an appeal from the commission would act in a legisla¬ 
tive and not in a judicial capacity. 

“And all that we have said would be equally 
true if an appeal has been taken to the Supreme 
Court of Apeals and it had confirmed the rate. 
Its action in doing so would not have been judi¬ 
cial, although the questions debated by it might 
have been the same that might come before it as a 
court, and would have been discussed and passed 


upon by it in the same way that it would deal 
with them if they arose afterwards in a case prop¬ 
erly so called.” 

That the proceedings before the Interstate Commerce 
Commission or before a State Railroad or Corporation 
Commission are legislative and not executive or judicial 
has been recently held by the Supreme Court of the 
United States in a case from Kentucky. Louis d Nash. 
R. R. Co. vs. Garrett, 231 U. 8., 298. 


The unanimous, opinion of the court is by Mr. Justice 
Hughes. At p. 305 he says: 

“It has frequently been pointed out that pre¬ 
scribing rates for the future is an act legislative, 
and not judicial, in kind. Interstaate Commerce 
Commission vs. C., N. O. d T. R. Ry. Co., 167 U. 
8., 479, 499; McChord vs. Louisville d Nashville 
R. R. Co., 183 V. 8., 483, 495; Prentiss vs. Atlan¬ 
tic Coast Line Co., 211 U. 8. 210, 226; Knoxville 
vs. Knoxville Water Co., 212 U. 8., 1, 8. It per¬ 
tains, broadly speaking, to the legislative power. 
The legislature may act directly, or, in the absence 
of constitutional restriction, it may commit the 
authority to fix rates to a subordinate body. 8tone 
vs. Farmers’ Loan d Trust Co., 116 U. 8., 307, 
336; Reagan vs. Farmers’ Loan d Trust Co ., 
154 U. 8., 362, 393, 394; Atlantic Coast Line 
vs. North Carolina Corporation Commission, 206 
U. 8., 1, 19; Honolulu Rapid Transit d Land Co. 
vs. Hawaii, 211 U. 8., 282, 291; Grand Trunk Ry. 
Co. vs. Railroad Commission of Indiana, 221 U 
8., 400, 403.” 

At page 307 : 

“The contention is that, before the commission 
makes such an order, it is required to exercise 
judicial functions. It is first to determine whether 
the carrier has been exacting more than is just 
and reasonable; it is to give notice and a hearing; 
it is to ‘hear such statements, arguments or evi- 


07 


dence offered by the parties’ as it may deem rele¬ 
vant; and, it is in case it determines that the car¬ 
rier is ‘guilty of extortion’ that it is to prescribe 
the just and reasonable rate. Still, the hearing 
and determination, viewed as prerequisite to the 
fixing of rates, are merely preliminary to the legis¬ 
lative act. To this act, the entire proceeding led; 
and it was this consequence which gave to the 
proceeding its distinctive character. Very prop¬ 
erly, and it might be said, necessarily—even with¬ 
out the express command of the statute—would 
the commission ascertain whether the former or 
existing rate was unreasonable before it fixed a 
different rate. And in such an inquiry, for the 
purpose of prescribing a, rule for the future, there 
would be no invasion of the province of the judi¬ 
cial department. Even where it is essential to 
maintain strictly the distinction between the judi¬ 
cial and other branches of the government, it must 
still be recognized that the ascertainment of facts, 
or the reaching of conclusions upon evidence taken 
in the course of a hearing of parties interested, 
may be entirely proper in the exercise of execu¬ 
tive or legislative, as distinguished from judicial 
powers. The legislature, had it seen fit, might 
have conducted similar inquiries through com¬ 
mittees of its members or specially constituted 
bodies, upon whose report as to the reasonable¬ 
ness of existing rates it would decide whether or 
not they were extortionate and whether other rates 
should be established, and it might have used 
methods like those of judicial tribunals in the 
endeavor to elicit the facts. It is ‘the nature of 
the final act’ that determines ‘the nature of the 
previous inquiry.’ Prentiss vs. Atlantic Coast Line, 
211 U. S., 210, 227.” 

These rulings by the Supreme Court of the United 
States upset all our theories in regard to the nature of the 
power of commissions to fix the rates and charges of com¬ 
mon carriers; and we must hunt for an explanation. No 
fault can be found with the rule of the common law or of a 
legislative enactment, that the rates and charges of com- 


G3 


mon carriers should be just and reasonable. The diffi¬ 
culty was that the common law remedy by an action at 
law, proved to be, under modern railroad conditions, 
utterly inadequate and worthless. It was incumbent on 
the legislative branches of our Federal and State govern¬ 
ments to provide a remedy. This they undertook to do, 
and the Supreme Court of the United States has held that 
the remedies furnished by the Interstate Commerce Act 
exclude and abolish the common law remedy by actions at 
law. (Texas & Pae. R. v. Abilene Cotton Oil Co., 204 U. 
S. 426.) 

It being finally settled that fixing a rate for the future 
is legislative, and that the question whether it is reason¬ 
able or not cannot become a judicial question until after 
it has been legislatively fixed, the question arises, what 
becomes of the intermediate power of a commission to fix 
rates. I think this is the answer. 

The Interstate Commerce Commission, or a State Com¬ 
mission with similar powers, does not exercise either the 
legislative, executive, or the judicial power. The function 
of the commission is to ascertain a fact, and to announce 
its conclusion, and thereupon the rate so ascertained goes 
into effect, as a. rate of the legislative department, and not 
as the rate of the commission. The commission acts as a 
mere agency of the legislative to ascertain a fact, it does 
not legislate, or adjudicate, or exercise an executive dis¬ 
cretion. Congress might use a committee of the House of 
Representatives or a joint committee of the two houses to 
do the same work, and it would not be considered a dele¬ 
gation of its own power. A commission of this kind is a 
mere ministerial agency of the legislative department and 
its act, its rate, is the action and rate of that department. 


Nothing can be clearer than that the legislature cannot 
delegate to a commission the power to fix a rate of taxa¬ 
tion, yet, in Michigan a state board ascertain the average 
rate of taxation in the state, and the rate so ascertained 
is imposed upon the railroad property in the state, not as 
taxation imposed by the board, but as a tax levied by the 
legislature. 

This was first attempted by legislation, but the act was 
held unconstitutional (Pingree v. Auditor General , 120 
Mich. 95.) 

That was a test case to determine the validity of a rail¬ 
road bill passed by the Legislature in 1899. 

The constitution of the state was then amended so as 
to authorize the conferring of the power to ascertain the 
average rate on a state board of assessors, and such an 
act was passed in 1901. 

The railroad companies contested the validity of the 
amendment and the act, in the Federal Courts, where it 
was held that the board acted in a mere ministerial 
capacity, and the rate ascertained by the board, became 
the rate of the legislature, and that it was not neces¬ 
sary to convene the legislature to add its formal ap¬ 
proval. (Mich. Cent. R. R. vs. Powers , 201 U. S. 245.) 

There is but little of any difference between the words 
“executive” and “administrative,” but the word “minis¬ 
terial” has a much narrower meaning; it is usually ap¬ 
plied to official duties which do not involve the exercise 
of any judgment or discretion, except to a very limited 
extent. It can be used to describe the power of the Inter¬ 
state Commerce Commission, and of state commissions 
having power to fix rates. 


70 


It lias been so used by the Supreme Court of Michi¬ 
gan in an opinion by Justice Stone, a learned and able 
jurist. 


In Mich. Cent. R. Co. vs. Mich. R. Com., 1G0 Mich., 
355, at page 363, he says: 

“It is held that the functions and duties of such 
commissions are administrative or ministerial, and 
neither legislative, executive or judicial.” 

The Supreme Court of the United States has very 
clearly shown the difference between executive discretion 
and action, and a ministerial duty, Mississippi vs. John¬ 
son, 4 Wall. 497, where it is said: 

“A ministerial duty, the performance of which 
may, in proper cases, be required of the head of a 
department, by judicial process, is one in respect 
to which nothing is left to discretion. It is a sim¬ 
ple definite duty, arising under conditions admit¬ 
ted or proved to exist, and imposed by law.” 

We conclude therefore that the power conferred on the 
Interstate Commerce Commission, and on state railroad 
commissions, to ascertain certain facts, and conditions, 
and when they are found, to apply the remedy of an¬ 
nulling, approving or establishing rates of freight and 
fare, is a ministerial duty or function, and not an execu¬ 
tive or judicial duty or power. The inquiry the commis¬ 
sion makes as to the facts is a preliminary investigation 
such as might be made by a legislative committee, but its 
final action in fixing rates for the future is an exercise 
of the legislative power by the congress or the state legis¬ 
lature. The commission is the mere ministerial agent of 
the legislative, and is not a legislative agent exercising 
a delegated power in violation of the constitution, nor 


71 


is it an executive board enforcing a law or a court exer¬ 
cising judicial power. 

Where the state constitution, like that of Virginia, ex¬ 
pressly authorizes the state court, when it vacates an 
order of the commission, fixing rates, to itself fix reason¬ 
able rates for the future, the power so conferred on the 
court must be regarded as an exception from the rule 
that the courts can only exercise judicial power. When 
the Virginia Supreme Court of Appeals on appeals to it, 
from the State Corporation Commission, fixes the rates, 
it exercises legislative power, because the constitution 
says it may and commands it to do so. 

The constitution of Michigan confers no such power 
on the state courts, and the Supreme Court of the state 
has held that, although the legislature may have author¬ 
ized them to do so, the state courts cannot fix rates; 
that when a state court vacates an order of the railroad 
commission fixing rates it must refer the matter back 
to the commission to fix other rates. Michigan Central 
R. Co. vs. Circuit Judge, 156 Mich., 459, 470. 

The court has adhered to that ruling and it is settled 
constitutional law in this state. Detroit and Mackinac 
Railway Co. vs. Michigan Railroad Commission , 144 N. 
TV, 689; 178 Mich. 

This is in accord with the ruling of the Supreme Court 
of the United States that fixing rates for the future is a 
legislative function. 

While an order of a commission fixing rates is a legis¬ 
lative act, it does not follow that the commission, as a 
ministerial agency of the legislature, has the same power 


72 


as the legislature to pass laws without a hearing or only 
such as it sees lit to grant. 

This is a matter on which we have the instruction of 
the Supreme Court of the United States. 

The original interstate commerce act provided that the 
commission could entertain complaints against common 
carriers; that a full hearing should be given the parties; 
and that the commission should “investigate the matters 
complained of in such manner and by such means as it 
shall deem proper.” 

The commission was required to make a report in 
writing, and include therein the findings of fact upon 
which the conclusions of the commission were based. 

“Such findings so made shall thereafter in all 
judicial proceedings be deemed prima facie evi¬ 
dence as to each and every fact found.” (24 U. 
8. Stat 379, 384.) 

The Hepburn Act of 1906 (34 U. S. Stat. 384), amend¬ 
ing the Interstate Commerce Act, omitted the next above 
clause of section 14, and made other amendments to the 
act increasing the power of the commission; which in¬ 
duced the commission, and the Department of Justice, to 
contend that the findings and orders of the commission 
w T ere conclusive and final; and they argued that inas¬ 
much as the commission was authorized to make investi¬ 
gations on its own account, and having been given legis¬ 
lative power to make rates it can act as congress would 
on information so obtained, and therefore its findings 
must be presumed to be suported by such information, 
although not formally proved at the hearing. 

The court in an opinion by Mr. Justice Lamar rejected 
the argument and overruled the contention of the com- 


73 


mission and its counsel. Int. Com. Comm. vs. Lows. & 
Nash. R. R., 227 U. S., 88. 


The court held that if the commission obtained infor¬ 
mation of its own the parties must be apprised of the 
evidence of it, and be given an oportunity to cross-exam¬ 
ine witnesses, to inspect documents, and to offer evidence 
in explanation and rebuttal. 

The court further held, that the legal effect of evidence 
is a question of law, and if the commission made an or¬ 
der when there was no evidence to support it, the court 
should set it aside. 

The court said: 

“But the statute gave the right to a full hear¬ 
ing, and conferred the privilege of introducing 
testimony, and at the same time imposed the duty 
of deciding in accordance with the facts proved. 

“A finding without evidence is arbitrary and 
baseless. 

“And if the government’s contention is correct, 
it would mean that the commission had a power 
possessed by no other officer, administrative body 
or tribunal under our government. 

“It would mean that where rights depended 
upon facts, the commission could disregard all 
rules of evidence, and capriciously make findings 
by administrative fiat. 

“Such authority, however beneficially exercised 
in one case, would be injuriously exerted in an¬ 
other, is inconsistent with rational justice, and 
comes under the constitution’s condemnation of 
all arbitrary exercise of power.” 

I have gone over this subject of rate making because 
the course of the controversy shows the wisdom of our 
constitutions in separating the government into three co¬ 
ordinate branches. When each works within its own 


74 


province, the final results are wise and salutary. It 
would not do to vest the absolute power in any one man 
or body of men, or in any one department of the govern¬ 
ment. It is true the judiciary have the final say, but the 
power of the courts is subject to important limitations; 
they would not undertake to decide on the credibility of 
witnesses or other conflicts of evidence; they would only 
interfere when the legislative or executive acted without 
evidence or on wholly inadequate evidence, and thereby 
exceeded their own jurisdiction and power, by arbitrary, 
tyrannical, and confiscatory proceedings. 

Rate making has been, and for years to come, will be 
a subject of protracted litigation, and sooner or later if 
you prove to be successful lawyers, you will have to deal 
with it. 

A case has lately arisen and been decided in Michigan 
from which a student at law can derive much instruc¬ 
tion in constitutional interpretation. 

The state constitution of 1908 retains the provisions 
of that of 1850, dividing the powers of government in 
three departments, and that 

“no person in one department shall exercise the 
powers belonging to another, except in the cases 
expressly provided in this constitution.” 

The express provisions of the constitution of 1850 gave 
the governor a qualified negative on the legislative, gave 
the Senate power to try impeachments presented by the 
House of Representatives, and gave the legislature in 
joint convention the power to determine contested elec¬ 
tions for governor, lieutenant governor and state officers. 


75 

The constitution of 1908 contains a new express pro¬ 
vision. 

“The legislature shall pass no local or special 
act in any case where a general can be made ap¬ 
plicable, and whether a general act can be made 
applicable shall be a judicial question.” 

Another new provision reads: 

“No act shall take effect or be in force until 
the expiration of ninety days from the end of the 
season at which the same is passed, except that 
the legislature may give immediate effect to acts 
making appropriations, and acts immediately 
necessary for the preservation of telr public peace, 
health or safety by a two-thirds vote of the mem¬ 
bers elected to each house.” 

In 1909 the legislature passed a general law for the 
incorporation of cities, but did not give it immediate 
effect. 


In 1913 this law T was amended by the legislature, and 
it was declared that the amending act was immediately 
necessary for the preservation of the public peace, health 
and safety; and it was given immediate effect, from the 
date of its aproval by the governor March 11, 1913. 

Acting under authority conferred by the amending 
act certain amendments to the charter of the city of 
Detroit were proposed by the common council and ap¬ 
proved by the electors at the spring election on the first 
Monday of April, 1913. 

The principal question in the case of Attorney-General, 
ex rel Barbour vs. Lindsey, decided Jan. 24, 1914, 20 D. 
L. N., 1167, was whether the amending act did take im¬ 
mediate effect. 


Four opinions were delivered. 


7G 

Justices Ostrander and Bird held that the question 
whether an act should be given immediate effect was a 
matter of legislative discretion, and the determination 
of the legislature was conclusive and final and could 
not- be reviewed by the courts. Justice Kuhn had given 
an opinion to the same effect, when attorney-general, and 
for that reason did not sit in the case. Three of the 
eight judges of the court are of that opinion. 

Mr. Justice Brooke was of the opinion that the action 
of the legislature was not conclusive, and it could be 
reviewed by the court; but he held that in this case the 
legislature acted within its discretion. He said: 

“I do not think it can be said with certainty 
that the act in question was not immediately 
necessary for the preservation of the public peace, 
health or safety, and the courts should interfere 
only where that conclusion is inevitable. 

“It is clear that in any event the act (if other¬ 
wise unobjectionable) would become a valid en¬ 
actment after the expiration of ninety days from 
the date of adjournment.” 

Mr. Justice Moore delivered an opinion in which he 
agreed “in the main with what is said by Justice 
Brooke,” but disagreed with him on another question in 
the case, that did not involve the immediate effect clause. 

Justices Stone and Steere signed the opinion of Justice 
Moore. Six of the seven judges sitting in the case, and 
seven of the eight judges of the court, are of the opin¬ 
ion that the amending act did take immediate effect. 

That was the “main” thing in the opinion of Justice 
Brooke, and it is probable that Justices Moore, Stone and 
Steere intended to approve that part of the opinion of 
Justice Brooke in which he held that the court had juris¬ 
diction to overrule the action of the legislature, but 


77 


when he held that in this instance the legislature had not 
exceeded its authority, what he said as to the power of 
the court to overrule the decision of the legislature be¬ 
came an obiter dictum. 

An authoritative decision of that question cannot be 
had until the court disagrees with the legislature, and 
actually annuls an immediate effect clause in an act. If 
you want to know the difference between an authorita¬ 
tive decision and obiter dicta, read Judge Christiancy’s 
opinion in Don Moran vs. People, 25 Mich., 356, 364. 

An obiter dictum is not binding on the judge respon¬ 
sible for it, or on the judges who concur with the result 
of his opinion. 

Chief Justice McAlvay, a very able and courageous 
judge, agreed with Justice Brooke, that the court had 
jurisdiction to overrule the legislature, and completely 
demolishing the argument that there was an immediate 
necessity for giving the amending act immediate effect, 
held the action of the legislature invalid, and going a 
step farther, he held that there being no immediate 
necessity, the whole amending act, and all proceedings 
under it were void. 

The strength of this opinion is that it is logically con¬ 
sistent from beginning to end, for it cannot be positively 
asserted that the legislature would have passed the same 
kind of an act, if it had known that it could not be given 
immediate effect. The presumption is the other way and 
what Justice Brooke said on that question is the judg¬ 
ment of the court as it received the approval of four of 
the seven judges who heard the case. 


78 


Mr. Justice Brooke, in his opinion, says that those 
who framed the new constitution could and wisely should 
“have made their intention clear and put all misgiving 
at rest by simply declaring that this should be a legis¬ 
lative and not a judicial question.’ 7 

The answer to which is that the constitutional conven¬ 
tion and the people by their vote of ratification did ex¬ 
press their intention with clearness and absolute cer¬ 
tainty. 

When the legislature gives immediate effect to an act 
it exercises the very same kind of legislative power as 
when it passes the act. This particular power not being 
expressly excepted from the legislative, it is governed by 
the provision that no person in one of the three depart¬ 
ments shall exercise the powers of the other departments. 

There being no possible ground on which it can be 
held that giving immediate effect to an act is not an ex¬ 
ercise of legislative power, there is no room for construc¬ 
tion, because the constitution in this particular construes 
itself; it lays down a positive rule. 

Mr. Justice Brooke refers to the provision that an act 
may embrace but one object which shall be expressed in 
its title, and lie says, 

“no one would claim that a question arising under 
this provision of the constitution should not be 
determined judicially yet the basic law is silent 
upon the point.” 

The reply to this is. that the provision confining acts 
of the legislature to one object, relates to the form of 
legislation. The title and the body of the act are before 
the court, and whether the constitutional provision has 


79 


been complied with is a plain legal question. The court 
has no occasion to go outside of the act. 

This is not so as to the clause relative to giving im¬ 
mediate effect to acts. There it must be assumed that 
the legislature made some inquiry as to conditions pre¬ 
vailing in the state or some part of the state, and with 
knowledge of such conditions, comes to the conclusion 
that immediate effect is necessary. Its action relates to 
the operation of the act, to the time it is to take effect, 
and as our constitution does not require the legislature 
to set forth the grounds or reasons for its conclusion, 
the court is not in a position to annul the action of the 
legislature, which may be based upon conditions aliunde 
the record or face of the act. 

These intellectual scraps on the bench are a good omen 
because they indicate that all the judges are taking an 
active interest in each decision of the court. Dissenting 
opinions are reassuring because they show that the ob¬ 
jections to the conclusion of the majority have been 
urged upon the court by one of its own members and 
not left to the sometimes inadequate arguments and con¬ 
tentions of counsel. 

I am a stronge believer in and an upholder of the power 
of the courts to invalidate acts of the legislative in con¬ 
flict with the fundamental law; but it is important that 
the judiciary in exercising this power confine themselves 
to their province, and not encroach on the legislative, ex¬ 
cept in cases, where it is plain that the constitution has 
been violated. That is the general attitude of all our 
courts, both federal and state; that it is the attitude of 
the Supreme Court of Michigan is shown by its decision 
that the legislature was within its discretion and pro¬ 
vince when it gave the amending act immediate effect. 


so 


Future legislatures will give immediate effect to acts, 
some of which will be clearly within the discretion to be 
exercised by the two houses. As to other acts there may 
be honest differences of opinion, and litigation will en¬ 
sue with the result that the people of the state will not 
know when any such act takes effect until long after it 
has taken effect by the expiration of the ninety days 
period from the end of the session. 

This in my judgment would be a greater evil than any 
the constitutional provisions on the subject were designed 
to remedy. 

When an act is to take effect ought to be definite and 
certain from the start, and not be left to run the gaunt¬ 
let of the courts. 

Experience will show that the opinion of Justice 
Ostrander, approved by Justice Bird, and ex-Attorney- 
General, now Justice Kuhn, is the better opinion. 

Protracted controversy produces the best results. As 
has been well said: “Time is the mother of truth.” 

The constitution of Illinois provides that the legisla¬ 
ture shall pass no local or special act where a general 
act can be made applicable, but does not provide that 
whether a general act can be made applicable shall be a 
judicial question. 

The constitutions of seventeen or eighteen states are 
in this particular the same as the constitution of Illi¬ 
nois ; and it has been uniformly held that the courts have 
no power to overrule the determination of the legislature. 

AVhether a general law can be made applicable or not, 


81 


in the absence of an express constitutional provision to 
the contrary, is a question for the legislative. 

Owners of Lands vs. People, 113 Ill, 296. 

Sanitary District vs. Ray, 199 Ill. 63. 

Johnson vs. Comrs. 107 Ind. 15. 

State vs. County Court, 50 Mo. 37. 

Ensworth vs. Curd, 68 Mo. 282. 

David vs. Faines, 48 Ark. 370. 

State vs. Hitchcock, 1 Kan. 178. 

Carpenter vs. People, 8 Cal. 116. 

The only case to the contrary I have been able to find, 
is an overruled case in Indiana (but I do not say there 
are no others.) 

This condition of the law led the state of Missouri, in 
1875, Minnesota in 1892, Kansas in 1906, and Michigan 
in 1908, to make the question whether a general law can 
be made applicable a judicial question. 

As the Michigan constitution does not make the ques¬ 
tion whether an act should be given immediate effect or 
not a judicial question there is no escape from the con¬ 
clusion, that it is a question for the legislature, and not 
for the courts. 

In my first lecture on the division of the government 
into three co-ordinate branches, I alluded to the fact that 
the English constitution departs from this principle, in 
that the Prime Minister and the Cabinet have become 
vested with the executive power and the members of the 
cabinet have seats, a voice, and votes in the parliament. 

In England they have the shell of an hereditary mon¬ 
archy, but its original kernel has been dug out and a 
representative government put in its place and the Eng¬ 
lish constitution as it now exists, is one of the most demo- 


cratic in the world. The Premier and his associates in 
the Cabinet known as the “Government” are the leaders 
of the dominant party in the House of Commons, and 
they can lead just so far as the Commons permits them 
to do so but no farther. When there is an adverse vote 
in the House on an important measure supported by the 
ministry, the Prime Minister resigns or the parliament 
is dissolved, and a general parliamentary election is held 
to ascertain the will of the nation. 

This is a most admirable system, especially adapted to 
English conditipns, and it has been adopted in Canada 
and nearly all the English colonies, and by France and 
Belgium and other countries. The main object and pur¬ 
pose of the Social-Democratic party in Germany is to 
establish it there, so as to make the ministry responsible 
to the Reichstag instead of to the Kaiser. 

In the United States we elect a President every four 
years, and a House of Representatives every two years, 
whether there is any occasion for it or not. It cannot be 
said that the government of the United States is less 
responsible to the will of the nation than the British, but 
the periodicity of our elections is a great nuisance and a 
blemish. 

You will have to study the practical workings of the 
two systems a long time before you will be able to form 
an opinion. 

It is a subject concerning the political constitutional 
law of the United States, and has but little to do with 
that part of our constitutional law which is within the 
jurisdiction of the courts. 

As applied to the provisions of our American Constitu¬ 
tions designed to protect private and public rights, I 


83 


have no doubt in my own mind but that the division of 
the powers of government into the legislative, executive 
and judicative, is of the highest value and of very great 
utility, and has all the merits attributed to it by Aris¬ 
totle and Montesquieu. 


BIBLIOGRAPHY. “The English Constitution,” by Walter 
Bagehot, the second edition of which, with a lengthy introduc¬ 
tion, was written in 1872, is a very instructive and interesting 
work, as the author aimed “to trace out the working of 
natural causes and inherent principles,” and his book “is 
pervaded by the scientific spirit without taking on the tech¬ 
nical terms of scientific exposition.” 

“Constitutional Limitations,” by Thomas M. Cooley, Mich¬ 
igan’s own most distinguished jurist, is the best work with 
which I am familiar, on the restrictions, the Division of Pow¬ 
ers, places upon the legislative, the executive and judicative. 
He gives elaborate treatment' to each of these departments, 
and cites numerous court decisions, and these have been 
enlarged in the notes to the seventh edition by Victor H. 
Lane, Professor of Law in the University of Michigan. 












t 


























































































































































































































































































































































































































































85 


IV. 

The Legislative. 

The origin and development of the great constitutional doc¬ 
trine, that the power to tax and to legislate, can only be exer¬ 
cised by a legislature, one house of which must be directly and 
immediately elected by the people—Charter of Henry I.—The 
events which led to Magna Charta—Archbishop Langton’s 
great services in advising and encouraging the Barons. 

The third great principle of American constitutional 
law is that there can be no valid taxation or legislation, 
except by a legislature (whether called a parliament, a 
congress, a general court or assembly, or a legislature, 
or b3 T any other name), one house of which must consist 
of representatives immediately and directly elected by 
the people. 

While in any logical analysis of constitutional prin¬ 
ciples this is the third in the list, it is first in practical 
importance. 

The most continuous and stupendous struggle in the 
development of a system of government, in all history, 
is that of the peoples who speak the English language, 
in their efforts and final success in establishing the great 
doctrine of representative taxation and legislation. 

The sacred nature of the rule that one house of the 
legislature must be composed of members immediately 
elected by the people, can not be fully understood and 
appreciated without studying the progressive history 
which resulted in its establishment. 


86 


It would be interesting to go back to the invasion of 
Britain by the Jutes, Saxons and Angles after the Roman 
legions were withdrawn, and to follow the history of the 
Anglo-Saxons down to the Norman conquest, but it is 
sufficient on this occasion to say that there had been de¬ 
veloped in England, before the coming of William the 
Conqueror, a decided tendency towards the feudal system, 
and that the Norman Kings brought that system into 
full force and vigor, although with some modifications 
from the feudo-vassalism of the continent. 

The King was the supreme land owner, and all the 
land was held by him either immediately or mediately. 
He had his tenants and they had their tenants as sub¬ 
tenants, and so on down to the actual occupiers of the 
land. 

Those who held immediately of the King were his ten¬ 
ants in chief, and they had their tenants in chief, and 
there were cases where there were as many as nine lords, 
above the tenant who actually cultivated the soil. 

The essential feature of the whole system was the ren¬ 
dition of services for a grant of land. The king’s tenants 
in chief held their land by tenure of military service, 
knight’s service as it was called, which obligated them 
to furnish one or a number of fully armed warriors for 
the king’s army. 

Sub-tenants were under a similar obligation, and in 
this way the king directly and through the sub-tenants 
obtained a small but efficient force of armed troops. 

Then there were other services of a non-military char¬ 
acter which the tenants were required to render, such 
as the duty to attend the court of the lord to act as the 


87 


suitors or judges, and the doing of agricultural work 
or the payment of rent, in kind or in money. 

Tenants by military service occupied nearly all the 
land in England and the plan was adopted of allowing 
it to be commuted for by a payment in money which was 
called scutage, or service by the shield. 

One of the incidents of feudal service was that when 
a tenant died, and his heir was a minor, and unable to 
perform the services due from his land, his lord became 
his guardian, and was entitled to the rents and profits of 
the land, provided he committed no waste, and if he held 
under several lords, the lord from which Ms family de¬ 
rived their most ancient title to the land was entitled to 
the guardianship. 

One of the results of this guardianship was the right 
to control the marriage of the ward, especially of an 
heiress, for the lord was interested in preventing her 
from marrying a cripple, or an enemy of his. 

Another incident of feudal service was the payment of 
a relief to the lord on a change of ownership by inheri¬ 
tance or otherwise. At first the relevium was a matter 
of bargain between the lord and tenant, but was subse¬ 
quently fixed at 100 shillings for a knight's fee, and 
100£ for a barony. A barony was an aggregation of 
manors, held bv a great earl or baron. 

Another thing connected with feudalism was the pay¬ 
ment made to the lord by his tenants to aid him on 
special occasions or for a special purpose, such as knight¬ 
ing the lord's eldest son, the marriage of his oldest 
daughter, or a contribution towards the relief which the 


88 


lord owed to an overlord, or for ransoming the lord from 
captivity; and for other purposes. 

This short and very imperfect statement of the Eng¬ 
lish feudal system was necessary to understand in a gen¬ 
eral way the two constitutional documents of the feudal 
period, the charter of Henry I. and the Magna Charta of 
King John. 

To understand all the different tenures under which 
land was held in England recourse must be had to Lit¬ 
tleton on Tenures and Coke on Littleton. 


CHARTER OF HENRY I. 

In the year of Our Lord, 1101,—Henry, Son of William, 
by the Grace of God, King of the English, since the death of 
his brother, William: 

To All the Faithful, Greeting: 

1. Know that by the mercy of God and the common con¬ 
sent of all the barons of the kingdom of England, I was 
crowned as king of said Kingdom; and it is oppressed by gross 
abuses, 1, in the presence of God and because of the love I 
bear you, grant full liberty of the Holy Church of God, so 
that its property can neither be sold nor rented at the death 
of an archbishop, bishop or abbot, and that nothing can be 
accepted by me from the property of the church or from any 
member of its clergy, before its successor has been appointed. 

I abolish all the wicked customs by which the Kingdom of 
England has been oppressed, which bad customs I here par¬ 
ticularize. 

2. At the death of any of the barons who hold from me or 
of any one who hold from my barons, his heir shall not suc¬ 
ceed to his estate as was done in the time of my brother, but 
he shall take only after a lawful payment of the charge there¬ 
on. Likewise, all tenants under my barons shall become 


89 


seized of the enfeoffed lands, only after an equitable settle¬ 
ment with their lords of the charges thereon. 

3. If any of my barons or any of those who hold under 
my barons should wish to marry his daughter, his sister, grand¬ 
daughter or any of his kindred, he shall confer with me about 
the same, but I can receive nothing for the granting of a license 
to marry or forbid the marriage taking place, except if the 
purpose is to marry her to an enemy of mine. 

And, if at the death of any of my barons, or any of those 
holding under my barons, his daughter happens to succeed to 
his estate, with the advice of my barons, I shall allow her to 
marry and* become seized of her inheritance. 

And, in case of her husband’s death, the surviving wife, if 
there are no children, shall have her dower and the right to 
remarry, and I shall not give her in marriage without her 
consent. 

4. If the surviving wife has children she shall have her 
dower and the liberty of remarrying as long as her estate is of 
legitimate descent, and I shall not give her in marriage unless 
with her consent; and the guardanship of her children and 
the administration of the estate shall be either exercised by the 
wife or by any other kinsman who may be deemed more suit¬ 
able. 

And I order that my barons act in the same manner towards 
the sons, daughters or wives of their tenants. 

5. The common moneyage which was seized throughout 
the state and counties which was not in the reign of King 
Edward, this I will not in any manner from thenceforth at all 
defend. If any one shall be taken, either a moneyer or an¬ 
other, with false money, then let right and justice be done. 

6. All the choses in action and all the claims in favor of 
my brother, I release; except the claims I have in my own 
name, or which were in favor of some other person and 
sought to be enforced in the name of my brother. And if any 
charge on the estate of any one has been heretofore released, 

I confirm all such releases if made in good faith. 

7. And if by reason of being disabled' for military service. 


90 


any of my barons was subject to the payment of any dues in 
money, I hold the same as having been paid. 

If any one bound to military service was incapacitated by 
sickness to do so, and has not paid any money contribution, 
nor made any disposition to have that money paid, his wife, 
children or kinsmen and administrators shall apply that money 
according to his intention as well as they can construe it. 

8. And if any of my barons or my subjects commits a 
trespass, he shall not give a money pledge for his acquittal 
as used to be done in the times of my father, or my brother; 
but he shall make amend according to the character of his 
offense as was done prior to the time of my father when my 
remoter ancestors reigned. But if convicted of treason or 
felony, his punishment shall be according to justice. 

9. I forgive all prior homicides committed up to the day 
I was crowned as king; but those committed since shall be 
punished according to the law under King Edward. 

1 0. I retain the title to the forest lands according to the 
common consent of the barons, in the same manner as my 
father held them. 

11. To the knights, I grant their lands free of all charges 
and servitude in order that by the relief of such burdens, they 
may have more time to practice horsemanshp and the handling 
of arms for the end of being at my service in the protection 
of my kingdom. 

12. I command that peace be kept in all my kingdom. 

1 3. I restore the laws of King Edward as amended by my 
father with the consent of his barons. 

Should any one have taken possession of some of my prop¬ 
erty or that of any one else, after the death of my brother, 
King William, it must be immediately restituted, and any one 
persisting in retaining the same, if found, shall be caused to 
make severe amend upon conviction. 

Witnesseth, before Mauritius, bishop of London, Gundufus, 
bishop, and William, Bishop elect, Counts Henry, Simon, 
Walter Gifford, Robert of Monfort, Roger and Henry of 
Porte in London, where I was crowned. 


1)1 


Hume, the historian, referring* to this charter, says: 

“To give greater authenticity to these concessions, 
Henry lodged a copy of his charter in some abbey of each 
county, as if desirous that it should be exposed to the 
view of all his subjects, and remain a perpetual rule for 
the limitation and direction of his government; yet it 
is certain that, after the present purpose was served, he 
never once thought, during his reign, of observing one 
single article of it; and the whole fell so much into 
negligence and oblivion, that, in the following century, 
when the barons, who had heard an obscure tradition of 
it, desired to make it the model of the Great Charter 
which they exacted from King John, they could with 
difficulty find a copy of it in the kingdom. But as to 
the grievances here meant to be redressed, they still con¬ 
tinued in their full extent; and the royal authority, in 
all those particulars, lay under no manner of restriction. 
Reliefs of heirs, so capital an article, were never effec¬ 
tually fixed till the time of Magna Charta, and it is evi¬ 
dent that the general promise here given, of accepting a 
just and lawful relief, ought to have been reduced to 
more precision, in order to give security to the subject. 
The oppression of wardship and marriage was perpetu¬ 
ated even till the reign of Charles II; and it appears 
from Glanville, the famous judiciary of Henry II, that 
in his time, where any man died intestate—an accident 
which must have been very frequent when the art of 
writing was so little known—the king, or the lord of 
the fief, pretended to seize all the movables, and to ex¬ 
clude every heir, even the children of the deceased; a 
sure mark of tyrannical and arbitrary government.” 
(1 Hume's His. Eng., 243-244.) 

So far as the charter of Henry I is descriptive of the 
feudal system and undertook to improve it and to redress 


92 


the grievances of the Barons it is instructive and inter¬ 
esting; but there is very little in it designed for the pro¬ 
tection or benefit of the common people, beyond the res¬ 
toration of the laws of King Edward as amended by 
William, the Conqueror. This did not mean the laws 
enacted by Edward, the Confessor, but the laws of the 
Anglo-Saxons, which prevailed in the time of that king. 

The fifth paragraph relating to the tax called “money¬ 
age,” and the coinage has a constitutional importance 
both in England and America which has been overlooked 
by historians. 

It shows that more than a century before Magna Charta 
a constitutional declaration was made denouncing de¬ 
basements of the coinage. 

Ruding (Annals of the Coinage of Great Britain , Vol. 
1, p. 189) in his account of the treatment of the coinage 
by Henry I, says that “he, soon after his accession or¬ 
dained by charter wise and politic regulations, evidently 
calculated for the benefit of his subjects. Amongst these 
were the abolishing of moneyage, an oppressive tax, of 
Norman origin, and unknown in the time of Edward the 
Confessor, and the denouncing severe punishment against 
moneyers or other persons, on whom counterfeit coins 
should be found. In his laws it was ordained that falsi¬ 
fiers of the money should suffer the loss of a hand with¬ 
out redemption.” 

In a note Ruding gives this account of the tax called 
moneyage. “There was formerly a payment of twelve 
pence, every three years, due from each hearth in Nor¬ 
mandy for moneyage and foreage, or the privilege of 
cutting wood in the forests for fireing. It seems almost 


93 


peculiar to that duchy and was paid or at least one part 
of it that the money might not be changed; for in those 
times the seigniorage, which was taken upon every alter¬ 
ation of the coins was highly oppressive, and it was 
therefore commuted for by this tax. It was introduced 
into England either at the time of, or soon after the 
Norman Conquest.” 

A moneyer was a person who was employed or author¬ 
ized by the king to coin money, and the payments made 
by the moneyers for the privilege of coining were known 
as “moneyage,” in Latin “monetagium.” The tax paid 
to the king as the consideration for his keeping the coin 
pure, was also known as moneyage, and it was in this 
sense that the word “monetagium” was used in the fifth 
section of the charter of Henry I. This meaning of the 
word has been overlooked by some translators, and they 
have not seen the real import and constitutional signifi¬ 
cance of the section. It was a solemn declaration by the 
king that in the exercise of his prerogative of coining 
money he would not debase the coinage, and that any 
of his moneyers who should do so should be severely pun¬ 
ished. 


The Charter of Henry I. does not contain one word 
conferring upon or reserving to the barons any control 
over or participation in the enactment of the laws, or 
the imposition of taxes, or the administration of justice. 
All the powers of government are assumed to be vested 
in the person of the king. He renounces the right to levy 
the tax called “moneyage” but beyond that he makes no 
grant or promise of any kind except such as concern his 
relations to liis feudal tenants, and their relations to 
their tenants. The feudal system is in full force, and the 
king is the absolute sovereign of England. The govern- 


94 


ment is as far removed from the democratical system of 
the Anglo-Saxons and the ancient Germans as it could 
be; and it is from the absolutism of the Norman Kings 
of England, that we must trace the gradual growth and 
development of constitutional principles until that de¬ 
velopment resulted in the system of representative gov¬ 
ernment which now prevails in the United States of 
America. 

During the Norman period the power of taxation was 
not as important as it subsequently became, for the rea¬ 
son that under the feudal system the king derived large 
revenues from his landed estates. The kings of the 
West Saxons became the kings of England because they 
held more land and had more tenants than the other 
kings of the heptarchy, and they could lead a greater 
host in war. 

William the Conqueror confiscated the estates of 
Harold as king of England and earl of Wessex, and also 
a large number of other estates, and was himself the 
lord of as many as fifteen hundred manors. The Nor¬ 
man kings received a large income from their hereditary 
revenues, and it was only to meet extraordinary expendi¬ 
tures that they made tax levies, which were not de¬ 
pendent on the consent or approval of the great council 
of the realm, although it was at times obtained. 

The compilers of the Parliamentary History of Eng¬ 
land were not able from their examination of the records 
to state the taxes levied by William the Conqueror, or by 
William Rufus. Their summaries of the taxes levied 
during each reign commence with that of Henry I. 

“In the reign of Henry the First, the Conqueror’s 
youngest son, taxes were levied arbitrarily on the sub- 


95 


ject as in the two preceding reigns of his brother Rufus 
and his father. In his sixth year he set a sum upon 
every parish church and forced the incumbent to pay the 
money to redeem his church. In the eighth year of his 
reign he had for the marriage of his daughter Maud 3 s. 
for every hide of land. And, say historians, during his 
whole reign he levied a constant annual tax of 12 d. on 
every hide of land. It does not appear by any account 
we can meet with that the king asked the consent of his 
barons or people for raising these subsides; though there 
were some conventions of the estates of the realm called 
in his time.” (1 Pari. Hist. 9.) 

The reign of Stephen was the most turbulent in the 
history of England. A bloody contest for the throne was 
carried on, and no regular taxes were levied. Plunder 
was the resort of the king, of the barons, and of the in¬ 
vading forces of Matilda and her son Henry. 

In the reign of Henry II. taxes were raised “as arbi¬ 
trarily as before; in the beginning of it there was a 
scutage, but there is no account what it amounted to. A 
second scutage was made in the fifth year of his reign, 
amounting to 180,000£. In his seventh year a third 
scutage was raised of two marks every knight’s fee. In 
the twelfth 2 s. in the pound for the first year, and one 
penny a pound for four years after, of all rents and 
movables. In the 14th year of his reign, a fourth scutage 
of a mark a knight’s fee. In the 18th, a fifth scutage, un¬ 
certain w T hat it was. In the last year of this king’s 
reign, a tenth on all movables for the crusade.” (1 
Pari. His., p. 16.) 

The tax for the crusade against the Turks and Sara¬ 
cens for the recovery of the Holy Land, appears to have 


96 


been the first tax to which the estates of the realm gave 
their consent. The same tax had been levied in Nor¬ 
mandy, but the undertaking was abandoned and it is 
likely that in England the tax was not collected. 

Richard I. as soon as he was crowned began to make 
preparations to join the king of France and the Emperor 
of Germany in the third crusade. He convened the bish¬ 
ops, earls and barons of the realm and laid before them 
the invitation of the French king to join him in the 
Holy War, and Richard and his peers readily agreed to 
accept it. 

“The most of this king’s short reign was spent in this 
crusade; as well as a great part of the nation’s money. 
In the first year of it a scutage of twenty shillings was 
laid on every knight’s fee. In the second, for the arma¬ 
ment to carry on the war, two saddle hourses and two 
sumpter (pack) horses were taken of every city; of 
every abbey, one saddle horse and one sumpter horse; 
and of every manor of the king’s the same as the abbies. 
For his ransom when prisoner to the Emperor of every 
knight’s fee, twenty shillings; a fourth part of the rents 
of the laity; a fourth part of the rents of some clerks, 
and a tenth of others; all the gold and silver the churches 
had; and all the wool of that year the Cistercians had, 
as well as the monks of the order of Sempringham, who 
were never taxed before. The sum the Emperor demanded 
for King Richard’s ransom was one hundred and forty 
thousand marks of silver. 

“For liberty of tournament, every earl gave twenty 
marks, every baron ten marks, every landed knight four 
marks, and every knight of fortune two marks. In the 
years 1185 and 1196 were raised the sum of one million. 


97 


one hundred thousand marks hut not said how; also an 
aid of five shillings of every plow-land. 

“Great sums were also raised by seizures, fines and 
compositions and sale of demesne lands. So much money 
went out of the kingdom on this expensive crusade, and 
for the king’s ransom, that not one genuine coin of this 
king’s stamp is to be met with in the collections of the 
curious.” (1 Pari. His. 18.) 

The barons at the convention which accepted the invi¬ 
tation of the French king to join the Crusade undoubt¬ 
edly gave their consent to the scutage of twenty shillings 
for every knight’s fee laid for the purpose of raising 
money to carry on the war. 

Their consent to the crusade was the result of their 
religions enthusiasm, and it was sought by the king, and 
the convention was called, for the purpose of enlisting 
the English people in the effort to rescue the Holy Land. 

After the king was ransomed and he had returned to 
England he called a parliament which met at Notting¬ 
ham, March 27,. 1194, “On the third day, the parliament 
granted to the king two shillings from every plough-land 
in England; besides, he required a third part of the 
service of every knight’s fee for his attendance in Nor¬ 
mandy, and all the wool that year of the Cistercian 
monks, which being judged too hard, he compounded with 
them for a fine.” (1 Pari. Hist. 18.) 

John, the successor of Richard, proved to be one of 
the most tyrannical, quarrelsome and luckless of kings. 
He quarreled with the King of France and lost Nor¬ 
mandy; he quarreled with the Pope and was compelled 
to make the most abject submission; he quarreled with 


98 


his barons, and was forced to grant “Magna Cliarta,” 
and he had no sooner set his sign manual to that instru¬ 
ment and the army of the barons had dispersed, than 
he set about to repudiate the grant and to make war 
against the barons. In the midst of the struggle, he died. 
“A Knight without truth, a King without justice, a 
Christian without faith.” 

The compilers of the Parliamentary History of Eng¬ 
land do not give us a summary of the taxes levied during 
the reign of John, but inform us that in 1204 a meeting 
of the nobles was called at Oxford, and “Plere was grant¬ 
ed to the King two marks and a half of every knight’s 
fee; nor did the bishops or abbots or other of the clergy, 
depart without promise of the same.” (1 Pari. Hist. 
20 .) 

In a note on page 23 it is said: “There were several 
scutages in this King’s reign, but as they were arbitrarily 
and variously collected, they do not deserve notice.” 

Bishop Stubbs in his Constitutional History of Eng¬ 
land was able to give us more of the history of taxation 
from the Norman conquest to the granting of the Great 
Charter, than is to be found in the Parliamentary His¬ 
tory. 

At page 302, Yol. 1, lie says, “William, whose besetting 
vice was said by his contemporaries to be avarice, re¬ 
tained the revenues of his predecessors and added new 
imposts of his own. 

“The ordinary revenue of the English King had been 
derived solely from the royal estates and the produce of 
what had been the folkland with such commuted pay¬ 
ments of feorum fultum, or provision in kind as repre- 


99 


sented either the reserved rents from ancient possessions 
of the crown, or the quasi-voluntary tribute paid by the 
nation to its chosen head. The Danegeld, that is, the ex¬ 
traordinary revenue arising from the cultivated lands— 
originally levied as tribute to the Danes, although it had 
been continued long after the occasion for it had ceased,— 
had been abolished by Edward the Confessor. The Con¬ 
queror not only retained the royal estates, but imposed 
this Danegeld anew. In A. D. 1084 he demanded from 
every hide of land not held by himself in demesne, or 
by his barons, a sum of six shillings, three times the old 
rate.” 

At page 623, referring to the fact that in 1163 the 
ancient Danegeld disappears from the rolls, but was 
succeeded by a tax under the name of donum or auxilium 
lie says: “Under Richard the same tax appears under 
the name of carucage: the normal tax being levied on 
the carucate instead of the hide, and each carucate con¬ 
taining a fixed extent of one hundred acres. 

“Each of these names represents the taxation of a 
particular class: the scutage affects the tenants in chiv¬ 
alry; the donum or liidage or carucage, affects all holders 
of land; the tenth, seventh and thirteenth all the people 
in the realm. Each had its customary amount; the 
scutage of 1156 was twenty shillings on the fee; those of 
1159 and 1161 were two marks; the scutage of Ireland 
in 1171 was twenty shillings, and that of Galloway in 
1186 at the same rate. The scutages of Richard’s reign- 
one for Wales in the first year and two for Normandy in 
the sixth and eighth,—were in the first case ten, in the 
other cases twenty shillings: John in his first year 
raised a scutage of two marks; on other occasions he de¬ 
manded the same sum, besides the enormous fines which 
he extorted from his barons on similar pretexts.” 


Scutages in John’s Reign. 


First scutage in reign—1198-9 2 marks for Knight’s fee 


Second 

a 

(( 

a 

1200-1 

2 

a 

a 

u 

u 

Third 

U 

(( 

u 

1201-2 

2 

u 

u 

u 

a 

Fourth 

u 

u 

u 

1202-3 

2 

u 

u 

a 

a 

Fifth 

a 

u 

u 

1203-4 

2 

u 

u 

a 

u 

Sixth 

a 

« 

(( 

1204-5 

2 

u 

u 

a 

u 

Seventh 

« 

u 

u 

1205-6 

20s 

u 

u 

u 

u 

Eighth 

u 

u 

u 

1209-10 

2 

u 

u 

i( 

a 

Ninth 

u 

u 

u 

1210-11 

2 

u 

u 

u 

a 

Tenth 

u 

a 

u 

1211-12 

3 

a 

u 

u 

u 

Eleventh 

u 

a 

u 

1213-14 

3 

u 

i( 

a 

u 


During previous reigns the normal scutage was 20s 
and it was only exacted in extraordinary emergencies, 
and not as a yearly burden. Sometimes it was only one 
mark (13s. 4d.) and even as low as 10s. 

In 1212 John insituted a great inquest throughout the 
land to discover every Knight’s fee in it, and then ex¬ 
acted a scutage of three marks (40s.), or double the nor¬ 
mal. 


The arbitrary and excessive taxation levied upon the 
barons and the people by John was one of the principal 
reasons for their revolt, and they had a great and wise 
counsellor and advisor in the Archbishop of Canterbury. 

Stephen Langton was an Englishman who had been 
educated in France, and had become noted there for his 
learning and piety. Pope Innocent III. invited him to 
Rome, and made him a cardinal. He was obtruded on 
England and his authority was established there, by 


101 


the power of the church, and the ability and persistency 
of Innocent III., the greatest of all Popes; but neverthe¬ 
less he proved to be a true hearted Englishman, and in 
the struggle of the barons with the king, neither the 
threats of his temporal or spiritual superiors could 
deter him from the patriotic performance of his duty to 
his countrymen. To him, more than any other man, the 
English people are indebted for the Great Charter, which 
contained the germs of constitutional liberty, and is the 
fruitful source of its most enduring principles. 

Before Langton would grant absolution to the king, 
he compelled him to swear that he would abolish all ille¬ 
gal customs, restore the good laws of his predecessors, 
particularly those of Edward the Confessor, give just 
and true judgment to all men, and restore to all their 
rights. 


A council was soon afterwards convened at St. Al¬ 
bans, August 4, 1213, at which Geoffrey Fitz-Peter, John’s 
chief justiciar, presided. Fitz-Peter was a man trained 
in the school of Henry II. under Glanvill and Hubert 
AValter. He had great influence with the barons, and 
held them true to the king in his controversy with the 
church. The chief justiciar was ex-officio regent in the 
absence of the King, and he presided at this council be¬ 
cause John had sailed, or was about to sail, on an expe¬ 
dition against France. As a result of the council, procla¬ 
mations were issued in the king's name ordering an ob¬ 
servance of the laws of Henry I., and denouncing the 
punishment of death against all sheriffs, officers of the 
royal forests, and other ministers of the crown who 
should exceed the strict limits of their authority. 


The reference to the laws of Henry instead of those 


102 


of Edward lias been a matter of comment, but it was 
probably due to the justiciar, and his superior legal 
learning, and possibly it was made out of deference to 
the prejudices of some of the Anglo-Norman barons, who 
may have preferred the name of a Norman law-giver to 
that of a Saxon one. Whatever the reason, it shows the 
connection of the Charter and laws of Henry I. with 
Magna Charta at the very inception of the movement 
which resulted in the grant by King John of the last 
named instrument. 

Another council of some of the principal barons was 
held at St. Paul's, London, August 25, 1213, at which 
the archbishop showed them a copy of the Charter of 
Henry I. He exhorted them to insist on the renewal 
and observance of it. The barons swore that they would 
sooner lose their lives than depart from so reasonable a 
demand. 

The barons clearly saw that the Charter of Henry I. 
furnished both a safe standing ground and a precedent 
for a deliberate scheme of reform. 

Fitz-Peter laid the claims of the council before the 
king, but died almost immediately after. The influence 
Avhich had stood between the king and barons was at an 
end, much to the relief of John, who exclaimed with an 
oath, that now for the first time he was King of Eng¬ 
land, little realizing that the death of his faithful serv¬ 
ant would soon result in his own discomfiture. 

Early in 1214, John went to Poictou and carried war 
into the dominion of Philip Augustus of France. Dur¬ 
ing his absence the confederacy of the barons spread 
wider and wider. In response to a summons from Lang- 


103 


ton they met in large numbers at St. Edmondsbury, un¬ 
der color of devotion. The archbishop “again produced 
to the assembly the old Charter of Henry; renewed his 
exhortations of unanimity and vigor in the prosecution of 
their purpose; and presented in the strongest colors the 
tyranny to which they had been so long subjected, and 
from which it now behooved them to free themselves and 
their posterity.” 

“The barons, influenced by his eloquence, incited by 
a sense of their own wrongs, and encouraged by the ap¬ 
pearance of their power and numbers, solemnly took an 
oath, before the high altar, to adhere to each other, to 
insist on their demands, to make endless war on the king 
until he should submit to grant them.” 

“They agreed that after the festival of Christmas, they 
would prefer in a body their common petition; and in the 
meantime they separated, after mutually engaging that 
they would put themselves in a posture of defense, would 
enlist men and purchase arms, and would supply their 
castles with the necessary provisions. 

“The barons appeared in London on the day appointed, 
and demanded of the king that, in consequence of their 
own oath before the primate, as well as in deference to 
their just rights, he should grant them a renewal of 
Henry’s charter and a confirmation of the laws of St. 
Edward. 

“On the feast of Epiphany, John at the Temple re¬ 
ceived a deputation from the barons and heard their 
demands; smothering his indignation, he requested a 
truce until the first Sunday after Easter. As the time 
for the king’s answer approached, the barons assembled 
an army at Stamford, and as soon as the truce expired 


104 


they proceeded to make war on the king. John was at 
Oxford and sent the archbishop and William Marshall to 
the barons with a message desiring to know what those 
liberties were which were so zealously challenged from 
their soverign. These messengers at once brought back 
a long schedule of demands, which were no sooner shown 
the king than he burst into a furious passion and re¬ 
fused to grant them. 

The warlike preparations went on, and a decisive bat¬ 
tle was about to take place, when the king yielded, and 
at Runymede, June 15,1215, agreed to the treaty or grant, 
known as Magna Charta. (1 Hume’s His. Eng. 122-249), 
(1 Stubb’s Consti. His. Eng. 563-569), ( Creasy’s Eng. 
Consti., 98-117.) 

Magna Charta is a feudal constitution and nothing else. 
It was made by the barons for the barons, and as a 
charter of liberties it is not much more than a myth; but 
it is a great document; it was drawn by an expert in 
feudal law; and it is of the highest value as showing 
what that law was in the reign of King John. Other¬ 
wise its historic value consists of what flowed from it, 
of the evolution which proceeded from it, and the germs 
planted in it from which were derived two or three of the 
leading principles of constitutional representative gov¬ 
ernment. 

At this time I only I only wish to call your attention 
to the fact that it does not contain one word relative to 
the power of taxation or legislation; but it does contain 
two paragraphs, (chap. 12 and 14) relative to feudal 
services and dues, which finally led after some centuries, 
to representative taxation and legislation. 


Rv the 14th chapter the common council of the king- 


105 


dom was to consist of the king’s tenants in chief, but a 
distinction was drawn between the greater and the lesser 
barons. The greater to be personally summoned, and 
the lesser to receive a general summons through the 
sheriffs. This distinction was also maintained in the 
practical administration, the greater barons accounting 
directly to the king at the exchequer, for the scutages 
and aids due from them and their subtenants, and the 
lesser barons accounting to the sheriffs who made their 
returns to the exchequer. 

Scutages and aids were the only dues mentioned, but 
these were in the nature of taxes, imposed at the request 
of the king and with the consent of the common council, 
for the support of his government. 

Scutages were originally a commutation for personal 
military service, but subsequently they included any tax 
ratable imposed on knight’s fees. 

For a short time after he granted the great charter, 
King John seemed to fully acquiesce; he retired to the 
Isle of Wight, but it was only to wait for an opportunity 
to avenge himself. The barons were lulled into a state 
of inactivity and discord, and John promptly took ad¬ 
vantage of the situation. He sent a messenger to home 
Avith a copy of the charter and obtained from the Pope 
a bull pronouncing the instrument null and void. 

Clothed with this authority he hired an army of for¬ 
eign mercenaries and made war against the recalcitrant 
barons. In desperation they appealed to Philip the King 
of France, who allowed his son Lewis to invade England 
in an effort to obtain the crown. While the war was 
going on John died, October 16, 1216. 


106 


John’s son, Henry III., was only nine years old, and 
William Marshall, the earl of Pembroke, was Marshall 
of England, and by virtue of his office, he was at the 
head of the military forces of the crown. 

At a council held at Bristol November 11, 1216, he 
was appointed regent, and the next day the charter was 
re-issued in the king’s name. Some changes were made 
but not many, the principal one being that chapters 12 
and 14 were wholly omitted, and were never replaced. 

There have been attempts at explaining this, but it is 
difficult to say just what the Regent, and Archbishop 
Langton alid his other advisers, had in mind. The facts 
were that the French invaders were in possession of half 
of England and it would require a supreme effort and 
all the power of the crown to expel them. 

The Great Barons knew that leaving out chapters 12 
and 14 would not abolish the common council of the 
realm; and for the time being at least they did not care 
to be bothered with the Lesser Barons. 

There are a number of opinions why the Lesser 
Barons were included in the common council. Some con¬ 
tend tliat the Great Barons, desired to induce the lesser 
to attend. Others think that the Great Barons expected 
that the lesser would not attend because of the expense 
and burden of attendance. Others contend that the ex¬ 
pectation was that the lesser barons would send up mem¬ 
bers to represent them. 

By omitting the 12th and 14th chapters the Greater 
Barons were left in possession of the government, and 
through the Regent, ruled the land. 


107 


They won a decisive victory over the French at the 
Battle of Lincoln May 19, 1217, and Lewis was com¬ 
pelled to sue for peace. He surrendered all the national 
archives in his possession and withdrew his forces, the 
Regent paying him 10,000 marks to help him along. 
Thereupon, Nov. G, 1217, the Great Charter was re¬ 
issued, with a separate Forest Charter. 

It was again re-issued Feb. 11, 1225, with little modi¬ 
fication, and this is Magna Charta in its final form, which 
is printed in the English statutes, and is referred to in 
the courts of law, and in law books which deal with it. 

Thus we see that the Great Charter did not secure to 
the English people, a parliament clothed with the power 
to tax and to legislate. Parliamentary government was 
still to come. 

BIBLIOGRAPHY. “Magna Charta, a Commentary on the 
Great Charter of King John with an Historical Introduction,” 
by William Sharp McKechnie, Lecturer on Constitutional law 
and history in the University of Glasgow, was published by 
James Maclehose and Sons, of Glasgow, in 1905. 

This work was written by a competent author from the 
standpoint of modern research, and no one can know what 
the meanings of Magna Charta were in 1215, until he has 
read McKechnie’s book. 

“The Origin of the English Constitution,” by George Bur¬ 
ton Adams, Professor of History in Yale College, published 
by the Yale University Press, New Haven, Conn., in 1912, 
is a recent and valuable addition to Magna Charta literature. 






































































































































































































































































































































































































































































































































































































































































u>y 

y. 

The Legislative. 

(Continued.) 

Full text of Magna Carta as translated by McKechnie— 
Comments thereon—The importance of obtaining a good 
understanding of the Great Charter as a starting place in the 
study of constitutional history and law. 

In order that students at law, and other readers may 
have Magna Carta in a convenient volume, it is deemed 
best to here insert the full text. 

MAGNA CARTA. 

(1215) 

PREAMBLE. 

“John, by the grace of God, king of England, lord of Ire¬ 
land, duke of Normandy and Aquitaine, and count of Anjou, 
to the archbishops, bishops, abbots, earls, barons, justiciars, 
foresters, sheriffs, stewards, servants, and to* all his bailiffs and 
liege subjects, greeting. Know that, looking to God and for 
the salvation of our soul, and those of all our ancestors and 
heirs, and unto the honour of God and the advancement of 
holy Church, and for the reform of our realm, (we have 
granted as underwritten) by advice of our venerable fathers, 
Stephen, archbishop of Canterbury, primate of all England and 
cardinal of the holy Roman Church, Henry archbishop of Dub¬ 
lin, William of London, Peter of Winchester, Jocelyn of Bath 
and Glastonbury, Hugh of Lincoln, Walter of Worcester, Wil¬ 
liam of Coventry, Benedict of Rochester, bishops; of master 
Pandulf, subdeacon and member of the household of our lord 
the Pope, of brother Aymeric (master of the Knights of the 
Temple of England), and of the illustrious men, William Mar¬ 
shall, earl of Pembroke; William, earl of Salisbury; William, 


110 


earl of Warenne; William, earl of Arundel, Alan of Galloway 
(constable of Scotland) ; Waren Fitz Gerald, Peter Fitz Her¬ 
bert, Hubert de Burgh (seneschal of Poitou), Hugh de Neville, 
Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip of 
Albini, Robert of Ropesle, John Marshall, John Fitz Hugh, 
and others, our liegemen. 

1. “In the first place we have granted to God, and by this 
our present charter confirmed for us and our heirs forever that 
the English church shall be free, and shall have her rights 
entire, and her liberties inviolate; and we will that it be thus 
observed; which is apparent from this that the freedom of elec¬ 
tions, which is reckoned most important and very essential to 
the English church, we, of our pure and unconstrained will, did 
grant, and did by our charter confirm and did obtain the ratifi¬ 
cation of the same from our lord, Pope Innocent III., before 
the quarrel arose between us and our barons, and this we will 
observe, and our will is that it be observed in good faith by 
our heirs forever. We have also granted to all freemen of our 
kingdom, for us and our heirs forever, all the underwritten lib¬ 
erties, to be had and held by them and their heirs, of us and 
our heirs forever. 

2. “If any of our earls or barons, or other holding of us in 
chief by military service shall have died, and at the time of his 
death his heir shall be of full age and owe ‘relief,’ he shall have 
his inheritance on payment of the ancient relief, namely the heir 
or heirs of an earl, £l 00 for a whole earl s barony; the heir or 
heirs of a baron, £100 for a whole barony; the heir or heirs 
of a knight, 100s. at most for a whole knight’s see; and who¬ 
ever owes less let him give less, according to the ancient custom 
of fiefs. 

3. “If, however, the heir of any one of the aforesaid has 
been under age and in wardship, let him have his inheritance 
without relief and without fine when he comes of age. 

4. “The guardian of the land of an heir who is thus under 
age, shall take from the land of the heir nothing but reasonable 
produce, reasonable customs, and reasonable services, and 
that without destruction or waste of men or goods; and if we 


Ill 


have committed the wardship of the lands of any such minor to 
the sheriff, or to any other who is responsible to us for it 3 
issues, and he has made destruction or waste of what he holds 
in wardship, we will take of him amends, and the land shall 
be committed to two lawful and discreet men of that fee, who 
shall be responsible to us for the issues, or to him to whom we 
shall assign them; and if we have given or sold the wardship of 
any such land to someone and he has therein made destruction 
or waste, he shall lose that wardship, and it shall be transferred 
to two lawful and discreet men of that fief, who shall be 
responsible to us in like manner as aforesaid. 

5. The guardian, moreover, so long as he has the ward¬ 
ship of the land, shall keep up the houses, parks, places for live¬ 
stock, fishponds, mills, and other things pertaining to the land, 
out of the issues of the same land; and he shall restore to the 
heir, when he has come to full age, all his land, stocked with 
ploughs and implements of husbandry, according as the season 
of husbandry shall require, and the issues of the land can rea¬ 
sonably bear. 

6. Heirs shall be married without disparagement, yet so 
that before the marriage takes place the nearest in blood to 
that heir shall hdve notice. 

7. “A widow, after the death of her husband, shall forth¬ 
with and without difficulty have her marriage portion and in¬ 
heritance; nor shall she give anything for her dower, or for her 
marriage portion, or for the inheritance which her husband and 
she held on the day of the death of that husband; and she 
may remain in the house of her husband for forty days after 
his death, within which time her dower shall be assigned to her. 

8. “Let no widow be compelled to marry, so long as she 
prefers to live without a husband; provided always that she 
gives security not to marry without our consent, if she holds of 
us, or without the consent of the lord of whom she holds, if she 
holds of another. 

9. “Neither we nor our bailiffs shall seize any land or rent 
for any debt, so long as the chattels of the debtor are sufficient 
to repay the debt; nor shall the securities of the debtor be dis- 


112 


trained so long as the principal debtor is able to satisfy the 
debt; and if the principal debtor shall fail to pay the debt, 
having nothing wherewith to pay it, then the securities shall 
answer for the debt; and let them have the lands and rents of 
the debtor, if they desire them, until they are indemnified for 
the debt which they have paid for him, unless the principal 
debtor can show proof that he is discharged thereof as against 
the said sureties. 

10. “If one who has borrowed from the Jews any sum, 
great or small, die before that loan be repaid, the debt shall 
not bear interest while the heir is under age, of whomsoever 
he may hold; and if the debt fall into our hands, we will not 
take anything except the principal sum contained in the bond. 

11. “And if anyone die indebted to the Jews, his wife 
shall have her dower and pay nothing of that debt; and if any 
children of the deceased are left under age, necessaries shall 
be provided* for them in keeping with the holding of the de¬ 
ceased; and out of the residue the debt shall be paid, reserv¬ 
ing, however, service due to feudal lords; in like manner let it 
be done touching debts due to other than Jews. 

12. “No scutage nor aid shall be imposed in our king¬ 
dom, unless by common counsel of our kingdom, except for 
ransoming our person, for makng our eldest son a knight, 
and for once marrying our eldest daughter; and for these there 
shall not be levied more than a reasonable aid. In like man¬ 
ner it shall be done concerning aids from the citizens of Lon¬ 
don. 

13. “And the citizens of London shall have all their 
ancient liberties and free customs, as well by land as by water; 
furthermore, we decree and grant that all other cities, bor¬ 
oughs, towns, and ports shall have all their liberties and free 
customs. 

14. “And for obtaining the common counsel of the king¬ 
dom anent the assessing of an aid (except in the three cases 
aforesaid) or of a scutage, we will cause to be summoned the 
archbishops, bishops, abbots, earls, and greater barons, by 
our letters under seal; and we will moreover cause to be sum- 


113 


moned generally, through our sheriffs and bailiffs, all others 
who hold of us in chief, for a fixed date, namely, after the 
expiry of at least forty days, and at a fixed place; and in all 
letters of such summons we will specify the reason of the sum¬ 
mons. And when the summons has thus been made, the busi¬ 
ness shall proceed on the day appointed, according to the 
counsel of such as are present, although not all who were sum¬ 
moned have come. 

15. “We will not for the future grant to any one license 
to take an aid from his own free tenants, except to ransom his 
body, to make his eldest son a knight, and once to marry his 
eldest daughter; and on each of these occasions there shall be 
levied only a reasonable aid. 

16. “No one shall be compelled to perform greater serv¬ 
ice for a knight’s fee, or for any other free tenement, than is 
due therefrom. 

1 7. “Common pleas shall not follow our court, but shall 
be held in some fixed place. 

18. “Inquests of novel disseisin, of mort d’ancestor, and 
of darrein presentment, shall not be held elsewhere than in 
their own county-courts, and that in manner following: We, 
or, if we should be out of the realm, our chief justiciar, will 
send two justiciars through every county four times a year, 
who shall, along with four knights of the county chosen by the 
county, hold the assizes in the county court, on the day and 
in the place of the meeting of the court. 

19. “And if any of the said assizes cannot be taken on 
the day of the county court, let there remain of the knights 
and freeholders who were present at the county court on that 
day, as many as may be required for the efficient making of 
judgments, according as the business be more or less. 

20. “A freeman shall not be amerced for a small offence, 
except in accordance with the degree of the offence; and for 
a grave offence he shall be amerced in accordance with the 
gravity of his offence, yet saving always his ‘contenement’; 
and a merchant in the same way, saving his wares—and a 
villein shall be amerced in the same way saving his wainage— 


114 


if they have fallen into our mercy; and none of the aforesaid 
amercements shall be imposed except by the oath of honest 
men of the neighbourhood. 

21. “Earls and barons shall not be amerced except 
through their peers, and only in accordance with the degree 
of the offence. 

22. “A clerk shall not be amerced in respect of his lay 
holding except after the manner of the others aforesaid; fur¬ 
ther, he shall not be amerced in accordance with the extent 
of his church benefice. 

23. “No community or individual shall be compelled to 
make bridges at river banks, except those who from of old 
were legally bound to do so. 

24. “No sheriff, constable, coroners, or others of our 
bailiffs, shall hold pleas of our Crown. 

25. “All counties, hundreds, wapentakes, and trithings 
(except our demesne manors) shall remain at the old rents, 
and without any additional payment. 

26. “If any one holding of us a lay fief shall die, and our 
sheriff or bailiff shall exhibit our letters patent of summons 
for a debt which the deceased owed to us, it shall be lawful for 
our sheriff or bailiff to attach and catalogue chattels of the 
deceased, found upon the lay fief, to the value of that debt, 
at the sight of lawful men, provided always that nothing what¬ 
ever be thence removed until the debt which is evident shall 
be fully paid to us; and the residue shall be left to the 
executors to fulfil the will of the deceased; and if there be 
nothing due from him to us, all the chattels shall go to the 
deceased, saving to his wife and children their reasonable 
shares. 

27. “If any freemen shall die intestate, his chattels shall 
be distributed by the hands of his nearest kinsfolk and friends, 
under the supervision of the church, saving to every one the 
debts which the deceased owed to him. 

28. “No constable or other bailiff of ours shall take 
corn or other provisions from any one without immediately 
tendering money therefor, unless he can have postponement 
thereof by permission of the seller. 


115 


29. No constable shall compel any knight to give money 
in lieu of castle-guard, when he is willing to perform it in his 
own person, or (if he himself cannot do it from any reason¬ 
able cause) then by another responsible man. Further, if we 
have led or sent him upon military service, he shall be relieved 
from guard in proportion to the time during which he has 
been on service because of us. 

30. No sheriff or bailiff of ours, or any other person, 
shall take the horses or carts of any freeman for transport 
duty, against the will of the said freeman. 

31. “Neither we nor our bailiffs shall take, for our castles 
or for any other work of ours, wood which is not ours, against 
the will of the owner of that wood. 

32. “We will not retain beyond one year and one day, the 
lands of those who have been convicted of felony, and the 
lands shall thereafter be handed over to the lords of the fiefs. 

33. “All kydells for the future shall be removed alto¬ 
gether from Thames and Medway, and throughout all Eng¬ 
land, except upon the sea coast. 

34. “The writ which is called praecipe shall not for the 
future be issued to anyone, concerning any tenement whereby 
a freeman may lose his court. 

33. “Let there be one measure of wine throughout our 
whole realm; and one measure of ale; and one measure of 
corn, to-wit, ‘the London quarter’; and one width of cloth 
(whether dyed or russet, or halberget), to-wit, two ells within 
the selvidges; of weights also let it be as of measures. 

36. “Nothing in future shall be given or taken for a writ 
of inquisition of life or limbs, but freely it shall be granted, 
and never denied. 

37. “If anyone holds of us by fee-farm, by socage, or by 
burgage, and holds also land of another lord by knight’s serv¬ 
ice, we will not (by reason of that fee-farm, socage, or burg¬ 
age) , have the wardship of the heir, or of such lands of his as is 
of the fief of that other; nor shall we have wardship of that fee- 
farm, socage, or burgage, unless sqch fee-farm owes knight’s 


116 


service. We will net by reason of any petty serjeanty which 
anyone may hold of us by the service of rendering to us 
knives, arrows, or the like, have wardship of his heir or of the 
land which he holds of another lord by knight’s service. 

38. “No bailiff for the future shall put any man to his 
‘law* upon his own mere word of mouth, without credible wit¬ 
nesses brought for this purpose. 

39. “No freeman shall be arrested, or detained in prison, 
or deprived of his freehold, or outlawed, or banished, or in 
any way molested; and we will not set forth against him, nor 
send against him unless by the lawful judgment of his peers 
and by the law of the land. 

40. “To no one will we sell, to no one will we refuse or 
delay, right or justice. 

41. “All merchants shall have safe and secure exit from 
England, and entry to England, with the right to tarry there 
and to move about as well by land as by water, for buying 
and selling by the ancient and right customs, quit from all evil 
tolls, except (in time of war) such merchants as are of the 
land at war with us. And if such are found in our land at 
the beginning of the war, they shall be detained, without 
injury to their bodies or goods, until information be received 
by us, or by our chief justiciar, how the merchants of our land 
found in the land at war with us are treated; and if our men 
are safe there, the others shall be safe in our land. 

42. “It shall be lawful in future for any one (excepting 
always those imprisoned or outlawed in accordance with the 
law of the kingdom, and natives of any country at war with us, 
and merchants, who shall be treated as is above provided) to 
leave our kingdom and to return, safe and secure by land and 
water, except for a short period in time of war, on grounds of 
public policy—reserving always the allegiance due to us. 

43. “If one who holds of some escheat (such as the 
honour of Wallingford, of Nottingham, of Boulogne, of Lan¬ 
caster, or of other escheats which are in our hands and are 
baronies) shall die, his heir shall give no other relief, and 
perform no other service to us that he would have done to 


117 


the baron, if that barony had been in the baron’s hand; and 
we shall hold it in the same manner in which the baron held 
it.” 

44. Men who dwell without the forest need not hence¬ 
forth come before our justiciars of the forest upon a general 
summons, except those who are impleaded, or who have be¬ 
come sureties for any person or persons attached for forest 
offences. 

45. ‘‘We shall appoint as justices, constables, sheriffs, or 
bailiffs only such as know the law of the realm and mean to 
observe it well. 

46. ‘‘All barons who have founded abbeys, concerning 
which they hold charters from the kings of England, or of 
which they have long-continued possession, shall have the 
wardship of them, when vacant, as they ought to have. 

47. ‘‘All forests that have been made such in our time 
shall forthwith be disafforested; and a similar course shall be 
followed with regard to river-banks that have been placed ‘in 
defence’ by us in our time. 

48. ‘‘All evil customs connected with forests and war¬ 
rens, foresters and warreners, sheriffs and other officers, river- 
banks and their wardens, shall immediately be inquired into in 
each county by twelve sworn knights of the same county 
chosen by the honest men of the same county, and shall, within 
forty days of the said inquest, be utterly abolished, so as never 
to be restored, provided always that we previously have intima¬ 
tion thereof, or our justiciar, if we should not be in England. 

49. ‘‘We will immediately restore all hostages and char¬ 
ters delivered to us by Englishmen, as sureties of the peace of 
faithful service. 

50. ‘‘We will entirely remove from their bailiwicks, the 
relations of Gerard de Athyes (so that in future they shall 
have no bailiwick in England), namely Engelard de Cygony, 
Peter, Gyon, and Andrew of the Chancery, Gyon de Cygony, 
Geoffrey de Martyn with his brothers, Philip Mark with his 
brothers and his nephew Geoffrey, and the whole brood of 
the same. 


118 


5 1. “As soon as peace is restored, we will banish from the 
kingdom all foreign-born knights, cross-bowmen, serjeants, 
and mercenary soldiers, who have come with horses and arms 
to the kingdom’s hurt. 

52. “If any one has been dispossessed or removed by us, 
without the legal judgment of his peers, from his lands, cas¬ 
tles, franchises, or from his right, we will immediately restore 
them to him; and if a dispute arise over this, then let it be 
decided by the five-and-twenty barons of whom mention is 
made below in the clause for securing the peace. Moreover, for 
all those possessions, from which any one has, without the 
lawful judgment of his peers, been disseised or removed, by 
our father, King Henry, or by our brother, King Richard, and 
which we retain in our hand (or which are possessed by 
others, to whom we are bound to warrant them) we shall 
have respite until the usual term of crusaders; excepting those 
things which a plea has been raised, or an inquest made by 
our order, before our taking of the cross; but as soon as we 
return from our expedition (or if perchance we desist from 
the expedition) we will immediately grant full justice therein. 

53. “We shall have, moreover, the same respite and in 
the same manner in rendering justice concerning the disaffore¬ 
station or retention of those forests which Henry our father 
and Richard our brother afforested, and concerning the ward¬ 
ship of lands which are of the fief of another (namely, such 
wardships as we have hitherto had by reason of a fief which 
anyone held of us by knight’s service), and concerning abbeys 
founded on other fiefs than our own, in which the lord of the 
fee claims to have right; and when we have returned, or if we 
desist from our expedition, we will immediately grant full jus¬ 
tice to all who complain of such things. 

54. “No one shall be arrested or imprisoned upon the 
appeal of a woman, for the death of any other than her hus¬ 
band. 

55. “All fines made with us unjustly and against the law 
of the land, and all amercements imposed unjustly and against 
the law of the land, shall be entirely remitted, or else it shall 


119 


be done concerning them according to the decision of the 
five-and-twenty barons of whom mention is made below in 
the clause for securing the peace, or according to the judg¬ 
ment of the majority of the same, along with the aforesaid 
Stephen, archbishop of Canterbury, if he can be present, and 
such other as he may wish to bring with him for this purpose, 
and if he cannot be present the business shall nevertheless pro¬ 
ceed without him, provided always that is any one or more of 
the aforesaid five-and-twenty barons are in a similar suit, they 
shall be removed as far as concerns this particular judgment, 
others being substituted in their places after having been 
selected by the rest of the same five-and-twenty for this pur¬ 
pose only, and after having been sworn. 

56. “If we have disseised or removed Welshmen from 
lands or liberties, or other things, without the legal judgment 
of their peers in England or in Wales, they shall be imme¬ 
diately restored to them; and if a dispute arise over this, then 
let it be decided in the marches by the judgment of their peers; 
for tenements in England according to the law of England, 
for tenements in Wales according to the law of Wales, and 
for tenements in the marches according to the law of the 
marches. Welshmen shall do the same to us and ours. 

5 7. “Further, for all those possessions from which any 
Welshman has, without the lawful judgment of his peers, been 
disseised or removed by King Henry our father, or King Rich¬ 
ard, our brother, and which we retain in our hand (or which 
are possessed by others, to whom we are bound to warrant 
them) we shall have respite until the usual term of crusaders; 
excepting those things about which a plea has been raised or 
an inquest made by our order before we took the cross; but 
as soon as we return (or if perchance we desist from our 
expedition), we will immediately grant full justice in accord¬ 
ance with the laws of the Welsh and in relation to the afore¬ 
said regions. 

58. “We will immediately give up the son of Llywelyn 
and all the hostages of Wales, and the charters delivered to us 
as security for the peace. 


120 


59. “We will do towards Alexander, King of Scots, con¬ 
cerning the return of his sisters and his hostages, and concern¬ 
ing his franchises, and his right, in the same manner as we 
shall do towards our other barons of England, unless it ought 
to be otherwise according to the charters which we hold from 
William his father, formerly King of Scots; and this shall be 
according to the judgment of his peers in our court. 

60. “Moreover, all the aforesaid customs and liberties, 
the observance of which we have granted in our kingdom as 
far as pertains to us towards our men, shall be observed by all 
of our kingdom, as well clergy as laymen, as far as pertains 
to them towards their men. 

61. “Since, moreover, for God and the amendment of 
our kingdom, and for the better allaying of the quarrel that 
has arisen between us and our barons, we have granted all 
these concessions, desirous that they should enjoy them in 
complete and firm endurance forever, we give and grant to 
them the underwritten security, namely, that the barons 
choose five-and-twenty barons of that kingdom, whomsoever 
they will, who shall be bound with all their might, to observe 
and hold, and cause to be observed, the peace and liberties 
we have granted and confirmed to them by this our present 
Charter, so that if we, or our justiciar, or our bailiffs or any 
one of our officers, shall in anything be at fault toward any¬ 
one, or shall have broken any one of the articles of the peace 
or of this security, and the offence be notified to four barons of 
the aforesaid five-and-twenty, the said four barons shall repair 
to us (or our justiciar, if we are out of the realm), and, laying 
the transgression before us, petition to have that transgression 
corrected without delay. And if we shall not have corrected 
the transgression (or, in the event of our being out of the 
realm, if our justiciar shall not have corrected it) within forty 
days, reckoning from the time it has been intimated to us (or 
to our justiciar, if we should be out of the realm), the four 
barons aforesaid shall refer that matter to the rest of the five- 
and-twenty barons, and those five-and-twenty barons shall, 
together with the community of the whole land, distrain and 
distress us in all possible ways, namely, by seizing our castles, 


121 


lands, possessions, and in any other way they can until redress 
has been obtained as they deem fit, saving harmless our own 
person, and the persons of our queen and children; and when 
redress has been obtained, they shall resume their old relations 
towards us. And let whoever in the country desires it, swear 
to obey the orders of the said five-and-twenty barons for the 
execution of all the aforesaid matters, and along with them, 
to molest us to the utmost of his power; and we publicly and 
freely grant leave to every one who wishes to swear, and we 
shall never forbid anyone to swear. All those, moreover, in 
the land who of themselves and of their own accord are 
unwilling to swear to the twenty-five to help them in con¬ 
straining and molesting us, we shall by our command compel 
the same to swear to the effect aforesaid. And if any one of 
the five-and-twenty barons shall have died or departed from 
the land, or be incapacitated 1 in any other manner which 
would prevent the aforesaid provisions being carried out, those 
of the said twenty-five barons who are left shall choose an¬ 
other in his place according to their own judgment, and he 
shall be sworn in the same way as the others. Further, in all 
matters the execution of which is entrusted to these twenty- 
five barons, if perchance these twenty-five are present and 
disagree about anything, or if some of them, after being sum¬ 
moned, are unwilling or unable to be present, that which the 
majority of those present ordain or command shall be held as 
fixed and established, exactly as if the whole twenty-five had 
concurred in this; and the said twenty-five shall swear that 
they will faithfully observe all that is aforesaid, and cause it 
to be observed with all their might. And we shall procure 
nothing from anyone, directly or indirectly, whereby any part 
of these concessions and liberties might be revoked or dimin¬ 
ished; and if any such thing has been procured, let it be void 
and null, and we shall never use it personally or by another. 

62. “And all the ill-will, hatreds, and bitterness that have 
arisen between us and our men, clergy and lay, from the date 
of the quarrel, we have completely remitted and pardoned to 
everyone. Moreover, all trespasses occasioned by the said 
quarrel from Easter in the sixteenth year of our reign till the 


122 


restoration of peace, we have fully remitted to all, both clergy 
and laymen, and completely forgiven, as far as pertains to us. 
And, on this head, we have caused to be made out to them 
letters patent of Stephen, archbishop of Canterbury; Henry, 
archbishop of Dublin, the bishops aforesaid, and master Pan- 
dulf, as evidence of this clause of security and of the aforesaid 
concessions. 

63. “Wherefore it is our will, and we firmly enjoin, that 
the English Church be free, and that the men in our kingdom 
have and hold all the aforesaid liberties, rights and conces¬ 
sions, well and peaceably, freely and quietly, fully and wholly, 
for themselves and their heirs, of us and our heirs, in all 
respects and in all places forever, as is aforesaid. An oath, 
moreover, has been taken, as well on our part as on the part 
of the barons, that all these conditions aforesaid shall be kept 
in good faith and without evil intent. Given under our hand 
—the above named and many others being witnesses—in the 
meadow which is called Runnymede, between Windsor and 
Staines, on the fifteenth day of June, in the seventeenth year 
of our reign.” 


Magna Carta has ever been a document to conjure 
with; it has been solemnly confirmed by the Crown and 
the Parliament over seventy times; it has been regarded 
by the English as a shrine; it has been the fruitful source 
of much inspiration; it has been cited and relied upon, 
occasions without number, by lawyers at the bar and 
judges on the bench; and it has been made to have many 
meanings it did not originally possess. 

Modern historians and scholars by a study of the his¬ 
tory which preceded it, and an examination of contem¬ 
poraneous waitings, have endeavored to ascertain just 
what it meant to the Barons who demanded it, and the 
King who was forced to grant it. 


123 


This has resulted in the above translation, which dif¬ 
fers in some particulars, from those which have been ac¬ 
cepted for centuries. 

McKechnie’s historical introduction and his comments 
on each section should be carefully read, but I desire to 
briefly call your attention to some of the more important 
features of the instrument from the American standpoint. 

The 39th chapter, which is the 29th in the reissue of 
1225, has great constitutional significance in this coun¬ 
try. 

The state constitutions adopted before the Constitu¬ 
tion of the United States was framed, followed very close¬ 
ly the words of Magna Carta, 

The Constitution of South Carolina of 1778 says: 

“That no freeman of this State be taken or imprisoned 
or disseized of his freehold, liberties or privileges or out¬ 
lawed, exiled or in any manner destroyed or deprived of 
his life, liberty or property but the judgment of his peers 
or by the law of the land.” 

The Massachusetts Constitution of 1780 is substantial¬ 
ly the same, as is that of Maryland of 1776, and of other 
states. The words “judgment of his peers or the law of 
the land,” were in general use, until the first ten amend¬ 
ments of the Constitution of the United States were 
adopted, when the words “without due process of law,” 
came into use. 

The Constitutions of New York of 1821, 1846 and 1894, 
adhere to the w T ords “unless by the law of the land or 
the judgment of his peers.” 


124 


The right to be governed and judged by the law of the 
land is secured to all persons, but it is very doubtful, 
whether the words “nullus liber homo” (no freeman) as 
used in Magna Carta had any such meaning in 1215. 

Coke in the Second Part of his Institutes commenting 
on Chapter 29, says, that the words “liber homo” extend 
to villeins for they are free against all men saving against 
their lords, and they also extend to both sexes, men and 
women; but Coke has to admit that in other chapters, 
notably the 20th of the original (the 13th of the reissue) 
a distinction was made between the freemen and the 
villeins. 

Primarily the freemen were landowners either in fee 
or for life, that is, freeholders. The villeins were not 
free as they were subject to their lords, and they needed 
protection from their masters, not from others. As a 
consideration for their services, the lords protected, or 
were supposed to protect their villein tenants from the 
attacks of others. That was the tie which bound the 
lords and their tenants together, in the ownership and 
occupancy of land. 

Encomiums have been written without number on the 
beneficent action of the barons in extending the protec¬ 
tion of Magna Carta to all persons in England, but there 
does not appear to be anything in contemporary history 
to justify any such praise. The barons were looking out 
for themselves; they were not laying down any great 
principle of constitutional government ; and they only 
had regard for their tenants so far as it concerned their 
own interests as lords. 

This is indicated by Chapter 32 of the reissue, which 
reads: 


125 


“No freeman from henceforth shall give or sell 
any more of his land but so that of the residue of 
his lands, the lord of the fee may have the service 
due to him, which belongeth to the fee.” 

And by the 34tli (24th of the reissue) chapter, which 
reads: 


“The writ which is called praecipe shall not for 
the future be issued to any one concerning any 
tenement whereby a freeman may lose his court.” 

The barons were desirous of preserving their own 
feudal courts from the encroachments of the royal courts, 
and this reactionary provision was insisted upon by them 
for that purpose. 

The barons in the 39th chapter of the charter they 
forced King John to sign laid down a rule for their own 
protection, which in the course of the centuries of de¬ 
velopment to follow was extended to all persons. 

It found a place in our first State constitutions, and in 
the Fifth Amendment of the Federal Constitution as a 
limitation on the powers of the general government, and 
in the Fourteenth Amendment it was made a federal 
limitation on the state governments. 

BIBLIOGRAPHY. “The Foundations of England” in 2 
vols., “The Angevin Empire” in 1 vol., “The Dawn of the 
Constitution” in 1 vol., and “Lancaster and York” in 2 vols., 
by Sir James H. Ramsay, published at different dates from 
1892 to 1903, constitute the best general history of England 
from the earliest times down to the battle of Bosworth and 
the death of Richard III, in 1485, that has been written. In 
the concluding chapters of “The Angevin Empire” will be 
found a detailed account of the events which immediately 
preceded Magna Carta. 










































THE LEGISLATIVE 


(Continued) 


Statute Confirmationes Chartarum—Statute De Tallagio 
non Concedenao—14 Edward Ill., Stat. 2— Petition of Right. 

The reign of Henry III. continued for fifty-six years, 
and although the 12th and 14th chapters of Magna Carta 
were omitted in all three reissues of that instrument, the 
barons continued to act as the common council of the 
kingdom, and their consent was obtained for all extra¬ 
ordinary taxes; and it is noteworthy that on seven or eight 
different occasions the “aid” requested by the king was 
refused by the barons. 

The government was efficient and in the main satisfac¬ 
tory during the regency of William Marshall, and of his 
able successor Hubert De Burgh, but when the king sur¬ 
rounded himself with alien advisers trouble began, and the 
balance of the reign is noted for the struggles and conflicts 
between the king and the barons, culminating in the 
Barons’ War. 

After the battle of Lewe^, May 14, 1264, Simon de Mont- 
fort governed in the name of the king. He summoned 
“the great Parliament of 1265,” which met on the 20th of 
January, and was composed of 120 bishops, abbots, priors 
and deans; 32 barons, with 2 knights from every shire, 
and 2 burgesses from every city and borough. It was the 
first parliament in which the three estates of the kingdom 
were represented, the church, the baronage and the com- 


128 


mons, but it was not a constitutional parliament, because 
it was simply a parliamentary assembly of the supporters 
of Montfort. 

At the battle of Evesham, August 4, 1265, Montfort was 
defeated by Prince Edward, the son of the king; Montfort 
was killed and his body terribly mutilated. 

Simon de Montfort made a lasting impression on the 
(constitution of England. By summoning two knights 
from each shire and two burgesses from each town and 
borough, he planted the germs of the house of commons. 

“The posthumous fame of rebels is generally 
measured by their success; but to the memory of 
the great Earl his countrymen were more than 
just; they awarded to him the honors, not of a 
statesman, but of a saint and martyr.” 

The English usually refer to him as St. Simon. 

There were feudal courts in France which were called 
parliaments, and that name began to be applied to the 
common councils of the kingdom in the reign of Henry 
III. These parliaments were at first looked upon as 
courts, which declared the law but did not legislate. 

Thus the document now called the statute of Merton 
was agreed upon and framed at a council of magnates held 
at the Priory of Merton in 1236. It is in the nature of a 
decree by a feudal court settling some disputed points of 
feudal law. It is recited in the preamble that it was the 
work of the “curia domini regis,” or the court of our lord 
the King, “before William, archbishop of Canterbury and 
other of his bishops and suffragans and before the greater 
part of the earls and barons of England then being as¬ 
sembled.” Its provisions show that it was made by the 
barons to protect them from the defaults, delinquencies 
and aggressions of their feudal tenants. 


129 


The statute of Marlebridge (Marlborough), of 1267, had 
for its principal object “the more speedy administration of 
justice as belongeth to the office of King,” and the pre¬ 
amble further recites “that the more discreet men of the 
realm being called together, as well of the higher as the 
lower estate, it was provided and agreed and ordained/’ 
etc. 

Here we see Simon de Montfort’s work bearing fruit. 

Upon the death of Henry III. his son became King as 
Edward I., and he was wise enough to adopt the policy of 
Montfort. The first parliament of his reign was held in 
January, 1273, and four knights of the shire and four 
citizens from each borough were called to appear. Ed¬ 
ward was then in the east on a crusade, but on his return 
a “parliament general” was summoned in January, 1275. 
For the first time the council was called a parliament. 

The famous statute of Westminster I. was enacted by 
the king 

“by his council, and by the assent of archbishops, 
bishops, abbots, priors, earls, barons and all the 
commonalty of the realm being thither summoned.” 

This statute is the first great work of the English parlia¬ 
ment as a legislative body. It is almost a code, and covers 
a wide field of legislation. 

From the reference to the commonalty in the preamble 
it is inferred that representatives of t.he commons were 
present; there is no evidence to that effect; but to another 
parliament in October, 1275, knights of the shire were 
summoned, as they were to later parliaments; but it was 
not until the model parliament of 1295, that the king for 
the first time issued writs combining representatives of 


clergy, shires and boroughs, in one assembly with the 
magnates. The barons received personal writs, and the 
sheriffs were directed to return two knights from each 
county and two citizens from each city or borough within 
their shires, with power to bind their constituents. 

“By these writs of summons a perfect representa¬ 
tion of the three estates was secured, and a parlia¬ 
ment constituted on the model of which every sub¬ 
sequent assembly bearing that name was formed.” 

In 1297 Edward I. was engaged in a war in France and 
needed money and forces. During his absence a parlia¬ 
ment insisted on a confirmation of Magna Carta, with ad¬ 
ditional articles in effect restoring to Magna Carta the 
omitted 12th and 14th chapters. The statute is known as 
the Confinncitio Cartarum. Another instrument is said to 
have been granted by the king at the same time known as 
the statute De TaUagio non concedendo , but is now re¬ 
garded by some historians as a popular incorrect version 
of the real articles; but it did get into the statute books. 

STATUTE CONFIRMATIONES CHARTARUM. 

Cap. I. 

EDWARD, by the grace of God, king of England, lord 
of Ireland, and duke of Guian, to all those that these present 
letters shall hear or see, greeting. Know ye that we, to the 
honour of God and of holy church, and to the profit of our 
realm, have granted for us and our heirs, that the charter of 
liberties, and the charter of the forest, which were made by 
common consent of all the realm, in the time of King Henry, 
our father, shall be kept in every point without breach. And 
we will that the same charters shall be sent under our seal, 
as well as to our justices of the forest, as to others, and to 
all sheriffs of shires, and to all our other officers, and to all 
our cities throughout the realm together with our writs, in the 
which it shall be contained, that they cause the aforesaid 
charters to be published and to declare to the people that we 


131 


have confirmed them in all points; and that our justices, 
sheriffs, mayors and other ministers, which under us have the 
laws of our land to guide shall allow the said charters pleaded 
before them in judgment in all their points, that is to-wit, the 
great charter as the common law, and the charter of the 
forest, for the wealth of our realm. 

Cap. II. 

And we will, that if any judgment be given from hence¬ 
forth contrary to the points of the charters aforesaid by the 
justices or by any other of our ministers that hold plea before 
them against the points of the charters, it shall be undone, 
and holden for nought. 


Cap. III. 

And we will, that the same charters shall be sent, under 
our seal to cathedral churches throughout our realm, there to 
remain, and shall be read before the people two times by the 
year. 


Cap. IV. 

And that all archbishops and bishops shall pronounce the 
sentence of excommunication against all those that by word, 
deed or counsel do the contrary to the aforesaid charters, or 
that in any point break or undo them. And that the said 
curses be twice a year denounced and published by the pre¬ 
lates aforesaid. And if the same prelates, or any of them, 
be remiss in the denunciation of the said sentences, the arch¬ 
bishops of Canterbury and York for the time being shall com¬ 
pel and distrain them to the execution of their duties in form 
aforesaid. 

Cap. V. 

And for so much as divers people of our realm are in fear, 
that the aids and tasks which they have given to us beforetime 
towards our wars and other business, of their own grant and 
good will (however they were made), might turn to a bondage 
to them and their heirs, because they might be at another time 


132 


found in the rolls, and likewise for the prices taken through¬ 
out the realm by our ministers: we have granted for us and 
our heirs, that we shall not draw such aids, tasks nor prizes 
into a custom, for anything that hath been done heretofore, 
be it by roll or any other precedent that may be founden. 

Cap. VI. 

Moreover we have granted for us and our heirs, as well 
to archbishops, bishops, abbots, priors and other folk of holy 
church, as also to earls, barons, and to all the communalty of 
the land, that for no business from henceforth we shall take 
such manner of aids, tasks, nor prises, but by the common 
assent of the realm, and for the common profit thereof, saving 
the ancient aids and prises due and accustomed. 

Cap. VII. 

And for so much as the more part of the community of 
the realm find themselves sore grieved with the maletent of 
wools, that is to-wit, a toll of forty shillings for every sack of 
wool, and have made petition to us to release the same, we 
at their request have clearly released it, and have granted for 
us and our heirs that we shall not take such things without 
their common assent and good will, saving to us and cur heirs 
the custom of wools, skins, and leather, granted before by the 
communalty aforesaid. 

In witness of which things we have caused these our letters 
to be made patents. Witness Edward our son at London the 
tenth day of October, the five and twentieth year of our reign. 


The statute Oonfirmationes Chartarum was in French 
and the words “eides mises ne prises,” are translated into 
“aids, tasks and prises.” 

Coke in his Institutes says that at that time auxilia 
was a general word including not only aids due by law 
and tenure and the three special aids, but also aids granted 


133 


by parliaments which were subsequently called subsidies, 
and that as here used the word aids is taken for an aid 
granted by parliament; and that mises “are properly taken 
for expenses or charges but here in this act they are taken 
for tasks, taxes, tallage or takings.” 


STATUTE DE TALLAGIO NON CONCEDENDO. 

Cap. I. 

No tallage or aid shall be taken or levied by us or our heirs 
in our realm, without .the good will and assent of archbishops, 
bishops, earls, barons, knights, burgesses, and other freemen 
of the land. 


Cap. II. 

No officer of ours, or of our heirs, shall take corn, leather, 
cattle, or any other goods, of any manner of person, without 
the good will and assent of the party to whom the goods be¬ 
longed. 

Cap. III. 

Nothing from henceforth shall be taken of sacks of wool 
by coulur or occasion of male-tent. 

Cap. IV. 

We will and grant for us and our heirs, that all clerks and 
laymen of our land shall have their laws, liberties, and free 
customs as largely and wholly as they have used to have the 
same at any time when they had them best; and if any statutes 
have been made by us or our ancestors, or any customs 
brought in contrary to them, or any manner of article con¬ 
tained in this present charter, we will and grant, that such man¬ 
ner of statutes and customs shall be void and frustrate for 
evermore. 


Cap. V. 

Moreover, we have pardoned Humfrey Bohun earl of 
Hereford and Essex, constable of England, Roger earl of 


134 


Norfolk and Suffolk marshall of England, and other earls, 
barons, knights, esquires, and namely John de Ferr .riis, with 
all other being of their fellowship, confederacy and bond, and 
also to all other that hold XX pound land in our realm, 
whether they hold of us in chief, or of other, that were ap¬ 
pointed at a day certain to pass over with us into Flanders, 
the rancour and evil will born against us; and all other offences 
that they have done against us, unto the making of this present 
charter. 

And for the more assurance of this thing, we will and 
grant, that all archbishops and bishops forever shall read this 
present charter in their cathedral churches twice in the year, 
and upon the reading thereof in every of their parish 
churches, shall openly denounce accursed all those that will¬ 
ingly do procure to be done anything contrary to the tenor, 
force and affect of this present charter in any point and article. 

In witness of which thing we have set our seal to this pres¬ 
ent charter, together with the seals of the archbishops, bishops, 
etc., which voluntarily have sworn that, as much as in them is, 
they shall observe the tenor of this present charter in all causes 
and articles, and shall extend their faithful aid to the keeping 
thereof, etc. 


Coke says : 

“Tallaguim or tailaguim eometli of the French 
word tailer, to share or cut out a part, and meta¬ 
phorically is taken when the king or any other hath 
a share or part of the value of a man’s goods or 
chattels, or a share or part of the annual revenue of 
his lands, or puts any charge or burthen upon an¬ 
other; so as tallaguim is a general word and doth 
include all subsidies, taxes, tenths, fifteens, impo¬ 
sitions or other burthens or charge put or set upon 
any man, and so is expounded in our books, here it 
is restrained to tallages set or levied by the king or 
his heirs.” 

The main difference between these two instruments is, 


that the one does not expressly mention the tax called 
tallage, tallaguim, and the other does. 

Everybody had to pay taxes in England, and cities and 
boroughs and all those free tenants who did not hold their 
land by knight’s service were subjected to the payment of 
tallage to the king, on special occasions such as a foreign 
expedition by the king. 

The barons in their articles demanding the Great 
Charter of King John had requested that tallages be in¬ 
cluded with scutages and aids in the dues that were not 
to be imposed without the consent of the common council 
of the realm; but there were no representatives of the 
towns and boroughs and free tenants at Runnymede, except 
the men in the ranks, and on this feature of their articles 
the barons yielded. 

As King Edward was anxious to secure the support of 
the towns and boroughs it is probable that the statute De 
Tallagio was granted to please them, but with no intention 
on the part of the king to comply with it on his return to 
England. 

The historians have not been able to give us any very 
accurate or satisfactory explanation of the fact that the 
confirmation of the charters by Edward I. appears in two 
separate instruments. In the Statutes of the Realm, the 
Statute de Tallagio non Concedendo is attributed to the 
34th year of the realm of Edward I. (1306), but this has 
been proved to be erroneous, and the true date is the same 
or about the same as that of the Statute Confirmationes 
Chartarum (1297). 

Another conspicuous thing about these two statutes is 
that while the one does not mention the tax known as 


130 


tallage, the other has no saving clause reserving to the 
king the “ancient aids, tasks and prises due and accus¬ 
tomed.” If we are to have any regard for the subsequent 
conduct of Edward I. in the exercise of the right reserved 
by the first of these statutes, it is difficult to reach the 
conclusion that he intended by the second statute to sur¬ 
render that right, although that seems to be the plain 
meaning of the act, when considered by itself. 

The most probable explanation is that the Statute Con- 
firmationes Chartarum was assented to by Edward I. in 
good faith with the intention of living up to the limita¬ 
tions placed by it upon the royal power, and that the 
Statute de Tallagio non Concedendo was sealed by him in 
response to an urgent demand on the part of the barons, 
and to temporarily satisfy them, but with no intention on 
his part of observing it, as far as it took away his pre¬ 
rogative of levying tallage on the demesne lands of the 
crown, and on the cities, towns and boroughs. 

The Petition of Eight (1628) mentions the Statute de 
Tallagio non Concedendo as a statute of the realm, and in 
1637 the judges held it to be a statute, but it was not until 
the 14th Edward III. (1340) that a statute, about which 
no question could be made, was enacted prohibiting tall¬ 
ages except by consent of parliament. 


14 EDWARD III. Stat. 2. 

(1340) 

Edward by the Grace of God, etc., to all them, etc., 

GREETING. 

Know ye, that whereas the Prelates, Earls, Barons, and 
Commons of our Realm of England, in our present Parliament 
holden at Westminster the Wednesday next after the Sunday 
of middle Lent, the fourteenth year of our reign of England, 


137 


and the first of France, have granted to us of their good Grace 
and good will, in Aid of the speed of our great business which 
we have to do, as well on this side the Sea as beyond, the 
Ninth Sheaf, the Ninth Fleece, and the Ninth Lamb, to be 
taken by two years next coming after the making of the same, 
and the Cities and the Burgesses of Boroughs the very Ninth 
part of all their goods; and the foreign merchants, and other, 
which live not of Gain, nor of store of sheep, the fifteenth of 
their goods lawfully to the Value: (2) We willing to provide 
for the Indemnity of the said Prelates, Earls, Barons, and 
others of the Commonalty, and also of Citizens, Burgesses and 
Merchants aforesaid, will and grant for us and our Heirs, to 
the same Prelates, Earls, Barons, and Commons, Citizens, 
Burgesses and Merchants, that the same Grant which is so 
chargeable, shall not another Time be had in Example nor fall 
to their Prejudice in Time to come, nor that they be from 
thenceforth charged nor grieved 1 to pay any aid, or to sustain 
Charge, if it be net by the Common Assent of the Prelates, 
Earls, Barons, and other great Men, and Commons of our said 
Realm of England, and that in the Parliament; (3) and that 
all the profits arising of the said Aid, and of Wards and Mar¬ 
riages, Customs and Escheats, and other Profits rising of the 
said Realm of England, shall be put and spent upon the Main¬ 
tenance and the Safeguard of our said Realm of England, and 
of our Wars in Scotland, France and Gascoin, and in no places 
elsewhere during the said wars. 

Cap. II. 

Item, Where it is contained in the Great Charter, That all 
Merchants shall have safe and sure conduct to go out of our 
Realm of England and to come and abide, and go through 
the Realm of England, as well by Water as by Land, and to 
buy and sell paying their rights and Customs, but in the Time 
of War; (2) we at the request of the Prelates, Earls, Barons, 
and Commons, will and grant for us and our heirs and Suc¬ 
cessors, That all Merchants, Denizens and Foreigners, (except 
those which be of our Enmity) may without Let safely come 


133 


into the said Realm of England with their goods and Mer¬ 
chandise and safely tarry, and safely return, paying the Cus¬ 
toms, Subsidies and other Profits reasonably thereof due; (3) 
so always that the franchises and free Customs reasonably 
granted by us and our ancestors to the City of London, and 
other cities, Boroughs, and good towns of our realm of Eng¬ 
land, be to them saved. 

The foregoing statute simply removed whatever doubt 
may have existed as to the validity aud binding force of 
the former statute. 

The reign of Edward I. is therefore entitled to the dis¬ 
tinction of having established the two great constitutional 
principles that the people, as the commonalty or third 
estate, were entitled to representation in the parliament 
which became the general taxative and legislative branch 
of the government of England and that no taxes could be 
levied without its consent. Having obtained control of 
taxation, the power of the parliament to withhold a grant 
of taxes unless accompanied by a redress of grievances 
enabled it to force the king to give his assent to legislation. 
The above statute is an example of that kind, and the par¬ 
liamentary history of England shows that in this way, 
the parliament become supreme, until finally the power of 
the king to refuse his assent, that is, to veto a bill passed 
by the two houses, became obsolete, and now for two cen¬ 
turies has not been exercised by any English King or 
Queen. 

We generally speak of the power of taxation as a part 
of the legislative power, but historically the taxative power 
was the mother of the legislative power; in fact, it is 
greater than the legislative power, and it would histori¬ 
cally be more correct to say that the power of taxation 
includes and carries with it, the power to legislate. 


139 


After the third and final re-issue of Magna Carta it was 
confirmed in almost every reign. Coke in his second In¬ 
stitute gives a list of 31 statutes of confirmation which 
were enacted before the seventeenth century. Two of them 
we have already considered. Two others are worthy of- 
notice by American students. 

The confirmatory statute of 28 Edward III. (1354) 
makes the first use of the words “due process of law.” 
Chap. 3 reads: 

“That no man, of what estate or condition he be, 
shall be put out of land, or tenement, nor taken, nor 
imprisoned, nor disinherited, nor put to death, with¬ 
out being brought to answer by due process of law.” 

The statute 42 Edward III. was an attempt to bind 
future parliaments not to violate Magna Carta. Chap. 1 
reads: 

“It is assented and accorded that the Great 
Charter and the Charter of the Forest be holden 
and kept in all points; and if any statute be made 
to the contrary that shall be holden for none.” 

The doctrine that a statute contrary to the fundamental 
law is unconstitutional and void never obtained recogni¬ 
tion in England, but in our American constitutions it is 
affirmatively and positively expressed. 

From the reign of Edward I., which ended in 1307, to 
that of Charles I., which began in 1625, is a long jump of 
over three hundred years, yet, there is no other than the 
two we have just stated, strong constitutional document 
in the whole period. 

We find at the close of the reign of Edward I. five differ¬ 
ent elements or interests struggling with each other for 
the mastery of England: 


140 


(1) The Crown; (2) The Church with its spiritual 
princes; (3) The Baronage with its temporal lords; (4) 
The Knights of the Shires representing rural England, 
and (5) The representatives of the cities and boroughs. 

The Church at first acted independently of the two other 
so-called estates of the realm; but finally the spiritual and 
temporal lords became the House of Lords. 

The Knights of the shire, as the lesser barons, were at 
first inclined to act with the greater barons, but they soon 
found that the interests which they represented were very 
closely allied to those of the cities and boroughs, and they 
united with the representatives of the latter, and together 
they became the House of Commons. 

Parliament showed its power in the deposition of Ed¬ 
ward II. and Richard II. and on various other occasions; 
but at other times it sank into insignificance, notably 
during the reign of Henry VIII. 

It was not until the Stuart kings of England, under the 
claim of Divine Right, undertook to rule by the exercise of 
the royal prerogatives, that the final struggle for the 
establishment of the principles of constitutional govern¬ 
ment first asserted in the Great Charter, took place; and 
that struggle covered all of the seventeenth century. 

The great popular revolt against the Stuarts first found 
formal expression in the Parliament of 1628, when the 
King was forced by the House of Commons to give his 
assent to the famous Petition of Right, in which is to be 
found all of the great constitutional principles expressed 
in prior statutes. 


141 


PETITION OF RIGHT. 

Car. I. c. i. 

( 1628 ) 

The Petition exhibited to his Majesty by the Lords Spiritual 
and Temporal, and Commons, in this present Parliament, as¬ 
sembled, concerning divers Rights and Liberties of the Sub¬ 
jects, with the King’s Majesty’s royal answer thereunto in full 
Parliament. 


To the King’s Most Excellent Majesty. 

Humbly show unto our Sovereign Lord the King, the Lords 
Spiritual and Temporal and Commons in Parliament as¬ 
sembled, that whereas it is declared and enacted by a statute 
made in the time of the reign of King Edward I, commonly 
called Ststutum de Tallagia non Concendendo, that no tallage 
or aid shall be laid or levied by the king or his heirs in this 
realm, without the good will and assent of the archbishops, 
bishops, earls, barons, knights, burgesses, and other the free¬ 
men of the commonalty of this realm; and by authority of par¬ 
liament holden in the five-and-twentieth year of the reign of 
King Edward III., it is declared and enacted, that from thence¬ 
forth no person shall be compelled to make any loans to the 
king against his will, because such loans were against reason 
and the franchise of the land; and by other laws of this realm 
it is provided that none should be charged by any charge or 
imposition called a benevolence, nor by such like charge; by 
which statutes before mentioned, and other the good laws and 
statutes of this realm, your subjects have inherited this free¬ 
dom, that they should not be compelled to contribute to any 
tax, tallage, aid, or other like charge not set by common con¬ 
sent, in parliament. 

II. Yet nevertheless of late divers commissions directed 
to sundry commissioners in several counties, with instructions, 
have issued; by means whereof your people have been in 


142 


divers places assembled, and required to lend certain sums of 
money unto your Majesty, and many of them, upon their re¬ 
fusal so to do, have had an oath administered unto them not 
warrantable by the law or statutes of this realm, and have been 
constrained to become bound and make appearance and give 
utterance before your Privy Council and in other places, and 
other of them have been therefore imprisoned, confined and 
sundry other ways molestecT and disquieted; and divers other 
charges have been paid and levied upon your people in several 
counties by lord lieutenants, deputy lieutenants, commissioners 
for musters, justices of peace and others, by command or di¬ 
rection from your majesty, or your Privy Council, against the 
laws and free customs of the realm. 

III. And whereas, also by the statute called “The Great 
Charter of the liberties of England” it is declared and enacted, 
that no freeman may be taken or imprisoned or be disseised 
of his freehold or liberties, or his free customs, or be outlawed 
or exiled, or in any manner destroyed, but by the lawful judg¬ 
ment of his peers, or by the law of the land. 

IV. And in the eight-and-twentieth year of the reign of 
King Edward III, it was declared and enacted by authority of 
parliament, that no man of what estate or condition that he be, 
should be put out of his land or tenements, nor taken, nor im¬ 
prisoned, nor disherited, nor put to death without being 
brought to answer by due process of law. 

V. Nevertheless, against the tenor of the said statutes, and 
other the good laws and statutes of your realm to that end 
provided, divers of your subjects have of late been imprisoned 
without any cause showed; and when for their deliverance they 
were brought before your justices by your Majesty’s writs of 
habeas corpus, there to undergo and receive as the court should 
order, and their keepers commanded to certify the cause of 
their detainer, no cause was certified but that they were de¬ 
tained by your Majesty’s special command, signified by the 
lords of your privy council, and yet were returned back to 
several prisons, without being charged with anything to which 
they might make answer according to the law. 


VI. And whereas, of late great companies of soldiers and 
mariners have been dispersed into divers counties of the realm, 
and the inhabitants against their wills have been compelled to 
receive them into their houses, and there to suffer them to 
sojourn against the laws and customs of their realm, and to the 
great grievance and vexation of the people. 

VII. And whereas, also by authority of parliament, in the 
five-and-twentieth year of the reign of King Edward III, it is 
declared and enacted, that no man shall be forejudged of life 
or limb against the form of the Great Charter and the law of 
the land; and by the said Great Charter and other the laws and 
statutes of this your realm, no man ought to be adjudged to 
death but by the laws established in this your realm, either by 
the customs of the same realm, or by acts of parliament; and 
whereas, no offender of what kind soever is exempted from the 
proceedings to be used, and punishments to be inflicted by the 
laws and statutes of this your realm; nevertheless, of late times 
divers commissions under your Majesty’s great seal have is¬ 
sued forth, by which certain persons have been assigned and 
appointed commissioners with power and authority to proceed 
within the land, according to the justice of martial law, against 
such soldiers and mariners, or other dissolute persons joining 
with them, as should commit any murder, robbery, felony, 
mutiny, or other outrage or misdemeanour whatsoever, and by 
such summary course and order as is agreeable to martial law, 
and as is used in armies in time of war, to proceed to the trial 
and condemnation of such offenders, and then to cause to be 
executed and put to death according to the law martial. 

VIII. By pretext whereof some of your Majesty’s subjects 
have been by some of the said commissioners put to death, 
when and where, if by the laws and statutes of the land they 
had deserved death, by the same laws and statutes also they 
might, and by no other ought to have been judged and ex¬ 
ecuted. 

IX. And also sundry grievous offenders, by colour thereof 
claiming an exemption, have escaped the punishments due to 
them by the laws and statutes of this your realm, by reason that 


144 


divers of your officers and ministers of justice have unjustly re¬ 
fused or forborne to proceed against such offenders according 
to the same laws and statutes, upon pretence that the said 
offenders were punishable only by martial law, and by author¬ 
ity of such commissions as aforesaid; which commissions, and 
all other of like nature, are wholly and directly contrary to the 
said laws and statutes of this your realm. 

X. They do therefore humbly pray your most excellent 
Majesty, that no man hereafter be compelled to make or yield 
any gift, loan, benevolence, tax, or such like charge, without 
common consent by act of parliament; and that none be called 
to make answer, or take such oath, or to give attendance, or 
be confined, or otherwise molested or disquieted concerning 
the same, or for refusal thereof; and that no freeman, in any 
such manner as is before mentioned, be imprisoned or de¬ 
tained; and that your Majesty would be pleased to remove the 
said soldiers and mariners, and that your people may not be so 
burdened in time to come; and that the aforesaid commissions, 
for proceeding by martial law, may be revoked and annuled; 
and that hereafter no commissions of like nature may issue 
forth to any person or persons whatsoever to be executed as 
aforesaid, lest by colour of them any of your Majesty’s sub¬ 
jects be destroyed or put to death contrary to the laws and 
franchise of the land. 

XI. All which they most humbly pray of your most excel¬ 
lent Majesty as their rights and liberties, according to the laws 
and statutes of this realm; and that your Majesty would also 
vouchsafe to declare, that the awards, doings, and proceedings, 
to the prejudice of your people in any of the premises, shall 
not be drawn hereafter into consequence or example; and that 
your Majesty would be also graciously pleased, for the further 
comfort and safety of your people, to declare your royal will 
and pleasure, that in the things aforesaid all of your officers 
and ministers shall serve you according to the laws and statutes 
of this realm, as they tender the honour of your Majesty, and 
the prosperity of this kingdom. Qua quidem petitione lecta et 


145 


plenispirtellecta per dictum dominum regem taliter est respon- 
sum in pleno parliamento, viz. Soit droit fait come est desire. 
(Statutes of the Realm, v. 24, 25.) 

At present we are only concerned with those parts of 
Petition of Right relating to the power of taxation. 

The kings of England were always short of money, and 
when the taxes voted by parliament were not sufficient to 
meet the royal necessities the kings would borrow of the 
Jews, and of foreign merchants doing business in England, 
and in turn would favor them, and release them as far as 
he could from the disabilities to which they were sub¬ 
jected. 

At home wealthy men and communities, such as towms 
and monasteries, would loan money to the king. It was 
not always easy to raise money in this way and recourse 
would then be had to compulsion. These forced loans 
were falsely called benevolences. As Prof. Medley says: 

“The advantage of this method was that it caused 
no widespread discontent in the country. The dif¬ 
ference between a forced loan and a benevolence or 
free gift is not easy to grasp; for, a loan taken at 
the king’s pleasure might also be repaid in his own 
good time, and with a complaisant Parliament to 
back him the distinction entirely disappeared.” 

This explanation will enable you to understand the ref¬ 
erences to loans and benevolences in the 1st, 2d and 10th 
paragraphs of the Petition of Right, and you will notice 
that it is specifically stated that no one should 

“be compelled to contribute to any tax, tallage, aid 
or other like charge not set by common consent in 
parliament.” 


110 


Bibliography: “History of England from the Accession of 
James I, to the Outbreak of the Civil War” (1603-1642), by 
Samuel R. Gardiner, in ten small volumes, published in 1900 
by Longmans Green and Co., of London and New York, is a 
most valuable work, which gives the best account of the events 
which led to the Petition of Right, and to the Ship-Money case, 
and the Long Parliament. 

“The Constitutional History of England from the Accession 
of Henry VII. to the death of George II,” by Henry Hallam, 
in three volumes, written and revised in 182 7, 1832 and 1846, 
and published in 1877 by W. J. Widdleton, of New York, is a 
standard work which covers the same period, and also the 
period with which we will be concerned in my next lecture. 


147 


VII. 

The Legislative. 

(Continued) 

The Ship-Money case, 1 Hargraves State Trials 508—How. 
State Trials 826—Speech of the Lord Keeper showing the 
case submitted by the king to the judges—The judge’s an¬ 
swer.—Argument of Oliver St. John for Mr. Hampden— 
Argument of Solicitor General for the King—Argument of 
Mr. Holborne for Mr. Hampden—Argument of Attorney 
General for the King. 

The reason why the Petition of Right did not settle 
the constitutional policy of England for all time is to 
be found in the fact that Charles I. did not give his as¬ 
sent to the petition in good faith. The judges unknown 
to the Commons gave the king to understand that as it 
would devolve upon them to construe and apply the act, 
he had nothing to fear from the courts, and he therefore, 
started on that career of despotism which brought him 
in twenty years to the executioner’s block. 

Dissolving parliament in 1629 he did not summon an¬ 
other until 1640 and during this parliamentary inter¬ 
regnum of eleven years, he ruled England as if the Peti¬ 
tion of Right had not been enacted into law. The wonder 
now is that the English people submitted as long as they 
did, but it was due to the religious fanaticism of the 
times, and their natural love of law and order, and their 
obedience to authority. During these eleven years two 
things happened of supreme importance to the constitu¬ 
tional law of England and America. (1) The persecu¬ 
tion of the Puritans and the Catholics forced them to 


148 


emigrate in large numbers to America, where they found¬ 
ed the Puritan colonies of New England and the Catholic 
colony of Maryland, and firmly planted in American soil 
the seeds of constitutional liberty. (2) There arose in 
England for adjudication the most important constitu¬ 
tional question that has ever been passed upon by a court 
of justice, viz: Whether the King as the executive head 
of the nation had power to levy taxes without the con¬ 
sent of parliament. 


THE SHIP-MONEY CASE. 

A full report of this case will be found in 1 Hargraves 
State Trials, 506. The ports of England were subject to 
unexpected attacks by pirates and by the ships of war of 
other nations, and in emergencies of this kind the king 
would without consent of Parliament call upon the in¬ 
habitants of the port-towns and of the counties in which 
they were situated, for ships and men and supplies and 
money, with which to resist an attack; but as the power 
w T as sparingly used, and only in cases of actual emer¬ 
gency it was not regarded as obnoxious, or at least it met 
with no serious opposition. 

Seizing upon this practice as a precedent Charles I. 
under the advice of William Noy, his Attorney General, 
Thomas Lord Coventry, Keeper of the Great Seal, and 
Henry Montague, Earl of Manchester and Keeper of the 
Privy Seal, levied taxes without summoning a Parliament, 
upon the whole kingdom, for the purpose of equipping a 
navy. 

On June 17, 1635, the Lord Keeper in a speech to the 
judges in the Star Chamber as they were about to go to 
their several circuits, called their attention, by com- 


149 


maud of His Majesty, to a levy which had already been 
made upon the maritime places and announced his pur¬ 
pose of making a levy on the whole kingdom “for the 
purpose of a greater fleet the next year.” 

February 14, 1636, the Lord Keeper made another 
speech to the judges in which he made public an extra 
judicial or private opinion the King had obtained from 
them sustaining his power to levy a ship money tax. 

SPEECH OF THE LORD KEEPER. 

“My Lords, I have but one particular more, and that is of 
great importance; whereof by special direction and command 
from his Majesty, I am to speak unto you at this time. All of 
you are the witnesses of his Majesty’s proceedings, tho’ the 
candour and clearness of his own heart exceedth your testi¬ 
mony, and your testimony is not only fit to be declared in 
this place, but in all the places of this realm. 

“His Majesty hath now the third time sent forth writs to re¬ 
quire the aid’ of his subjects for the guarding of the dominion 
of the sea, and safety of the kingdom. This his Majesty did 
upon great deliberation and advice, and upon important and 
weighty reasons. 

“In the first year when the writs were directed to the Ports 
and maritime places, they received little or no opposition; 
but in the seconcT year when they went generally thro’ out the 
kingdom (tho’ by some well obeyed) have been refused by 
some, not only in some inland counties, but in some of the 
maritime places; and actions have been brought against some 
that have been employed in the execution of these writs. I 
suppose that no man will expect that Arcana Regni, the pri¬ 
vate reasons of a prince, should either upon this or other oc¬ 
casions be made publick, but so many reasons as were fit to 
be opened, were formerly declared by me in this place to 
you the judges of this realm. 


150 


“The first was, that the whole kingdom is concerned in 
point of safety; admitting there were no other counsel or at¬ 
tempt against us, but only to interrupt us in the dominion of 
the seas, our most secure and safe defence, better either than 
castles or forts; which if it be commanded by others, it lays 
us open to much peril and danger. 

“Secondly, the whole kingdom is concerned in point of 
honour for it is one of the most ancient and honourable rights 
of the crown of England, even the dominion of the sea. And 
all records do show, how the kings and people of England 
have ever been careful that this honour should never perish; 
and certainly the whole kingdom is concerned in point of 
trade and profit; for the traffic does not only enrich the Mari¬ 
time ports but the inland towns; and if trading fail, the inland 
places will find it in the fall of the prices of wool, lead and 
other staple commodities. This experience showeth daily, 
when upon every stop of the Vent of the cloth, there come 
such outcries by the weaver, the fuller, the spinner, and wool- 
growers themselves; and the authority of the law sheweth the 
same 43 in the Book of Assize, which your Lordships know 
better than I, it appears that certain men went into the country 
and cast out a fame, that for that year no wool should be 
transported beyond the seas; presently upon this the price of 
wool fell and those men were called in question, and were 
adjudged in a fine for it. Now if a rumour did so much abate 
the trade in the heart of the kingdom, what would the loss 
of the dominion of the seas do, which exposeth us, and all 
our trade to the mercy of our neighbours? Therefore since 
the whole kingdom is concerned in point of Honour, safety 
and profit, what reason is there but that all should contribute 
to the maintenance of it? This, or to the like effect, I did 
formerly declare to you the Judges by his Majesty’s command; 
and his Majesty received satisfaction, in that you made a full 
declaration thereto in your circuits; and this I may say, for the 
most part the subjects have shewed themselves most dutiful 
and obedient in this service of his Majesty; and this year the 
sum imposed upon the county of York, being twelve thousand 
pounds, is brought in already by the sheriff, and so is most 


151 


part of Lancashire, and other shires; but when his Majesty 
heard of some refusals, tho he had cause to be sensible of 
it, yet he was far from being transported 1 with passion, but 
thought good to resort to the advice of you his Judges, who 
are sworn to give him faithful and true counsel in that which 
pertaineth to the law; and that his Majesty, as well for the 
direction of his own counts, as for the satisfaction of his sub¬ 
jects, required you to deliver your opinions herein, to which 
you returned an answer under your hands. And because the 
command which you received from the king, is expressly in 
a princely letter, under his own signature, 1 shall not take 
upon me to repeat it, you shall hear it read. 

‘ Which being delivered by my Lord-Keeper to one of the 
Clerks of the court, was read in hac verba. 

CAROLUS Rex. 

Trusty and well beloved, we greet you. Taking into our 
princely consideration, that the honour and safety of this our 
realm of England, the preservation whereof is only intrusted 
to our care was, and is now more nearly concerned than in 
former times as well as by divers counsels and attempts to 
take from us the dominion of the seas, of which we are sole 
lord and rightful owner; the loss whereof would be of greatest 
danger and peril to this kingdom, and other our dominions: 
We, for avoiding these and the like dangers, well weighing 
with ourselves, that where the good and safety of the king¬ 
dom in general is concerned, and the whole kingdom in dan¬ 
ger, there the charge and the defence ought to be borne by 
all of the realm in general; did, for prevention of so public 
a mischief, resolve with ourselves to have a royal navy pro¬ 
vided, that might be of force and power with Almighty God’s 
blessing and assistance, to protect and 1 defend this our realm 
and our subjects, from all such perils and dangers; and for 
that purpose we issued forth writs under our great seal of 
England, and directed to all our sheriffs of all our several 
counties of England and Wales, commanding thereby all our 
said subjects, in every city, town and village, to provide for a 


152 


number of ships, well furnished, as might serve for this our 
royal purpose; and which might be done with the greatest 
equality that could be. In performance whereof, tho’ gen¬ 
erally throughout all the counties of this our realm, we have 
found in our subjects great cheerfulness and alacrity which 
we graciously interpret as a testimony, as well of their dutiful 
affections unto us, and to our service, as the respect they have 
to the public, which well becometh every good subject, never¬ 
theless finding that some few, haply out of ignorance with the 
laws and customs of this our realm are, or out of a desire to 
be eased and freed in their particular, (how general soever 
the charge ought to be) have yet paid and contributed the 
several rates and assessments that were set upon them, and 
for seeing, in our princely wisdom, that from hence divers 
suits and actions are not unlikely to be commenced and prose¬ 
cuted in our several courts at Westminster: We, desirous to 
avoid such inconveniences, and out of our princely love and 
affection to all our subjects, being willing to prevent such er¬ 
rors as any of our loving subjects may happen to run into, have 
thought fit in a case of this nature to advise with our judges, 
who we doubt not are all well studied and informed in the 
right by our sovereignty. And because the trials in our sev¬ 
eral courts, by the formality in pleading, will require a long 
protraction, we have thought it expedient, by this our letter 
directed to you all, to require your judgments in the case, as 
it is set down in the enclosed paper, which will not only gain 
time, but also be of more authority to over-rule any prejudi- 
cate opinions of others in the point. 

“Given under our Signet at our court at White-hall, the 
second day of February in the twelfth year of our Reign, 

1636.” 

This being thus read, the Lord-Keeper commanded the 
case inclosed to be read, being as followeth: 

CAROLUS Rex. 

When the good and safety of the kingdom in general is 
concerned and the whole kingdom is in danger; whether may 


153 


not the king by writ under the great seal of England command 
all the subjects of this kingdom, at their charge, to provide 
and furnish such number of ships, with men, victuals and 
munition and for such time as he shall think fit, for the de¬ 
fence and safeguard of the kingdom from such danger and 
peril; and by law compel the doing thereof, in case of refusal 
or refractoriness? And whether in such a case, is not a king 
the sole judge, both of the danger, and when and how the 
same is to be prevented and avoided?’’ 


THE JUDGES’ ANSWER 


“May it please your Most Excellent Majesty. 

“We have, according to your Majesty’s command, every 
man by himself, and all of us together, taken into considera¬ 
tion, the case and question, signed by your Majesty, and in¬ 
closed in your royal letter: 

“And we are of opinion, that when the good and safety 
of the kingdom in general is concerned, and the whole king¬ 
dom in danger, your Majesty may by writ, under the great 
seal of England, command all the subjects of this your king¬ 
dom, at their charge, to provide and furnish such number of 
ships, with men, munition and victuals and for such time as 
your Majesty shall think fit, for the defence and safeguard 
of the kingdom from such danger and peril: And that by 
law your Majesty may compel the doing thereof, in case of 
refusal or refractoriness. And we are also of opinion, that 
in such case, your Majesty is the sole judge, both of the 
danger and when and how the same is to be prevented and 
avoided. 


Jo. Bramston 
Jo. Finch 
Hump. Davenport 
Jo. Denham 
Rich Hutton 
W. Jones 


Geo. Cooke 
Tho. Trevor 
Geo. Vernon 
Fra. Crawley 
Rob. Berkley 
Fra. Weston 


154 


The said case, with the Judges opinions thereunto (for¬ 
merly in private delivered to his Majesty) being thus publicly 
made known by my Lord-Keeper, who, withal, caused their 
several names to be read as they were in order subscribed 
(all the judges being present save only Judge Croke) ; the 
Lord-Keeper spake as followeth. 

“My Lords: 

“This being the uniform resolution of all the judges of 
England with one voice, and set under their own hands; I say, 
this being so resolved, as they do hereby express upon every 
man’s particular studying the case, and upon a general con¬ 
ference amongst themselves, it is of very great authority: 
for the very lives and lands of the king’s subjects are to be 
determined by these reverend judges; much more a charge 
of this nature, which God knows cannot be burdensome to 
any, but is of singular use and consequence, and for the safety 
of the whole kingdom. The command from his Majesty is, 
that I should publish this your opinion in this place, and give 
order that it should be entered in this court, in the High 
Court of Chancery, and in the Courts of King’s Bench, Common 
Pleas, and Exchequer; for this is a thing not fit to be kept in 
a corner: And his further command is, that you the judges 
of England, thro’ all parts of the kingdom, that all men may 
take notice thereof, and that those subjects which have been 
in an error, may inform themselves, or be reformed. You 
have great cause to declare it with joy and you can hardly 
do it with honour enough to the king, that in so high a point 
of his sovereignty, he has been pleased to defend and to 
communicate with you his judges; which sheweth, that justice 
and sovereignty in his Majesty do kiss each other. His fur¬ 
ther pleasure is, that you let all know it is not his purpose by 
this resolution to stop or check, the actions or suits which any 
have brought, or shall bring, conerning this; for it is his 
Majesty’s command, that all such as proceed in any action 
about the same, have equal and meet justice, and that they be 
suffered to proceed in course of law, so as you call the king’s 


155 


learned counsel unto their proceedings, that they may not be 
surprised. 

Now, my Lord's, I have little more to say, but this I am 
sure of that if any contrary opinion shall yet remain amongst 
men, it must proceed from those that are sons of the law 
(Faehces assent artes), and you the judges of the realm have 
been accounted the Fathers of the law in good faith, it will 
ill become the son to dispute against the father. Having 
thus delivered unto you, what I received in command from 
his Majesty, as his Majesty doth, so do I, leave it to your 
judgments.” 


CHARLES I. and his advisers assumed that the unani¬ 
mous opinion of the judges of the three great courts, of 
the kingdom, although privately obtained by him, settled 
the question of the legality of ship-writs beyond any fur¬ 
ther controversy, and they proceeded to enforce payment 
of the tax. The nation acquiesced, but a few resolute 
souls resisted, and insisted upon litigating the question 
in open court, among them John Hampden, a country 
gentleman, residing in Buckinghamshire. The King, con¬ 
fident that the judges would adhere to their extra-judicial 
opinion caused his Attorney General to sue out a writ of 
scire facias in the Court of Exchequer requiring Hamp¬ 
den to show cause why he should not pay the tax of 
twenty shillings which had been assessed against his 
property. All of the twelve judges sat at the hearing in 
the Exchequer chamber and the case was argued by coun¬ 
sel for twelve days. Oliver St. John and Robert Hoi- 
borne were the counsel retained by Hampden, and John 
Banks, Attorney General, and Edward Littleton, Solicitor 
General, represented the King. 


The counsel for Hampden labored under great em¬ 
barrassment because the judges had already ruled against 


156 


them, and if they were too outspoken in expressing their 
views, they might receive the violent censure of the Court. 

Mr. St. John opening for Mr. Hampden wisely con¬ 
ceded a part of the case of the King. He did not at¬ 
tempt to draw any distinction between the levy of ship 
money in the inland counties and its levy in the maritime 
counties, although the historical precedents relied upon 
by the counsel for the King fully justified such a dis¬ 
tinction; nor did he deny that the King was the sole 
judge of the existence of danger. 

In making his preliminary statement of the case, among 
other things, he said: 

“My Lord's, not to burn day light longer, it must needs be 
granted that in this business of defence, the Supreme Potestas 
is inherent in his Majesty, as part of his Crown and kingly 
dignity. So that as the care and provision of the law of Eng¬ 
land extends, in the first place, to foreign defence; and sec¬ 
ondly, lays the burden upon all and for aught I have to say 
against it, it maketh the quantity of each man’s estate the 
rule whereby this burden is to be equally proportioned upon 
each person: So likewise hath it, in the third place, made his 
Majesty sole judge of dangers from foreigners, and when 
and how the same are to be prevented; and to come nearer, 
hath given power by writ under the great seal of England, 
to command the inhabitants of each county to provide ship¬ 
ping for the defence of the kingdom, and may by law compel 
the doing thereof. 

“So, my Lords, as I will conceive, the question will not be 
de persona in which the Supreme Potestas of giving the au¬ 
thorities or powers to the sheriff; but the question is only 
de Modo, by what medium or method this Supreme Power, 
which is in his Majesty, doth insue and let out itself into this 
particular and whether or no in this case such of them have 


been used, as have rightly accomodated and apply’d this 
power unto this Writ in the intended way of defence: 

For the law of England, for the applying of that supreme 
power which it hath settled in his Majesty to the particular 
causes and occasions hath set down a method and known 
rules, which are necessarily to be observed.” 

St. John then went on to state his position to the effect 
that the power which he conceded was vested in the King, 
could only he exercised by the King in Parliament, that 
is by obtaining a parliamentary grant of supplies whereby 
the Lords spiritual and temporal and the Commons as 
the common council of the realm, would give their con¬ 
sent to taxation. 

Historians of this period of English history have ex¬ 
pressed the opinion that Mr. St. John made too great a 
concession in his presentation of the question before the 
court; but they overlook the fact, that as counsel for 
Hampden he was induty bound to use his best efforts to 
convince the judges that their extra-judicial opinion was 
erroneous. He knew that they were hopelessly committed 
to the doctrine, which had prevailed from the Norman 
Conquest, that the sovereign power of the kingdom was 
vested in the King, and as a discreet and practical lawyer 
and advocate, he evidently was of the opinion that it was 
better to treat the functions of parliament in giving its 
consent to taxation or legislation as a limitation on the 
power of the king, rather than an assumption of sovereign 
power by parliament itself with the approval of the king 
as a check thereon. 

The truth is parliamentary sovereignty was un¬ 
known in English law until after the revolution of 1688 
and the accession of William and Mary. Since then par- 


158 


liament has been supreme, and the royal approval of an 
act of parliament a matter of form only. 

St. John exercised good judgment in making the theo¬ 
retical concession he did as it was the most adroit and 
effective way of making an impression on the judges. 
Any other course would have been suicidal. His alleged 
concession made his argument that under the laws of 
England the King could only exercise the taxing power 
with the consent of parliament, the more effective and 
convincing; it cleared the way for a proper consideration 
of the exact question to be determined by the court, viz: 
Whether the consent of the lords spiritual and temporal 
and the commons, in parliament assembled, was not 
necessary to the validity of the ship-money tax. 

Experience in arguing cases before a bench of judges 
soon teaches a member of the legal profession that “when 
a case is clearly and accurately stated to the court it is 
more than half argued/’ Mr. St. John evidently had a 
due appreciation of the truth of this saying, for, before 
passing to his main argument, he took up in their order, 
the various sources of revenue, with which the Kings of 
England were endowed by law, independently of special 
grants from time to time by parliament ; and he showed 
very conclusively, that primarily, the principal portion 
of the ordinary revenues of the Crown, were for the de¬ 
fence of the kingdom. He began with the tenures of land 
under which the most of the kingdom was held either 
mediately or immediately of the Crown on condition that 
the holders should render military service in the wars. 
He mentioned tenure by knights service by which each 
holder of a knights fee was required to serve forty days; 
grand sergeantry, obligating the holder to carry the ban¬ 
ner of the king or to perform other and special service; 
petty sergeantry for finding of armour of all sorts; corn- 


150 


age to give warning of tlie enemies coming into the king¬ 
dom; and castle guard to defend the castles when the 
enemy enters the kingdom. The cinque ports and the 
counties palatine enjoyed special privileges on condition 
that they defended themselves, and the realm, from at¬ 
tacks from the sea or from the Scots and Welsh, and cer¬ 
tain other towns, some of them not maritime, were under 
a similar obligation. Passing from services in land, to 
tenures for supplying the king with money, St, John called 
attention to the power of the lord of land over the persons 
and goods of his villeins, and of the king over tenants of 
the ancient demesne, and to rents due from boroughs 
w r hich held by tenure in burgage; and finally he conclud¬ 
ed this part of his argument, by a review of the grants 
of custom duties known as tonnage and poundage, which 
had at first been made on extraordinary occasions for the 
guarding of the sea, but for many reigns had been granted 
to each king for life for the very purpose that he might 
have in readiness a stock of money to withstand an inva¬ 
sion. 

Having thus carefully stated the case, St. John insist¬ 
ed that if the ordinary resources and income of the Crown 
proved inadequate or insufficient to meet any emergency, 
the law had provided that the King could procure new or 
additional supplies by parliamentary grant. 

In an elaborate review of the parliamentary history of 
England he demonstrated that the main object and pur¬ 
pose of summoning the Lords and Commons to a parlia¬ 
ment was to obtain grants for extraordinary defenses; 
and that the law had provided this parliamentary way for 
supplying of the King’s wants, and had put the power of 
using it into His Majesty’s own hands, for he could call 
a parliament when and so often as he pleased. 


1G0 


Mr. St. John made use of a large amount of antiquarian 
lore, but placed his principal reliance on Magna Carta, 
the Statute Confirmationes Chartarum, the Statute De 
Tallagio Non Concedendo and the Petition of Right. He 
contended that ship-money was covered by the word 
anxuium in the constitutional article in the statute of 
Running Mead; that the clause in the Statute Confirma¬ 
tiones Chartarum saving to the King the ancient aids and 
prises due and accustomed, was satisfied with the three 
feudal aids, excepted, in Running Mead, and the prising 
of arms and purveyance, but to do away with any doubt 
or scruples on that point, the Statute De Tallagio was 
signed by Edward I. after he had approved of the Statute 
Confirmationes; and that all three of the statutes consti¬ 
tute Magna, Carta , as subsequently and so often con¬ 
firmed. 

St. John quoted from the Commission of the Loan, 2 
Charles I., these words: 

“The great and mighty preparations both by sea and land 
did daily threaten the kingdom; that the safety and substance 
of the king and people, and' the common cause of Christan- 
dom, were in apparent danger of suffering irreparably; that 
the king’s treasure is exhaust and the coffers empty; that 
the business of supply cannot endure so long delay as the 
calling of a Parliament, and enquiring into all means just in 
cases of such unavoidable danger; the king now resolved to 
borrow of the subject to enable his Majesty for their safeties, 
and promiseth repayment.’’ 

He then reminded the judges that in the Parliament of 
3 Charles I. which secured the king’s approval of the 
Petition of Right the legality of this commission was 
questioned, and upon debate, adjudged by both Houses to 
be void in law, and this view of the subject was included 


161 


in the Petition of Right, and it was not denied by His 
Majesty. 

In conclusion, St. John argued that so many of the 
kings and queens of England had failed to claim any such 
extraordinary power over their general consent that with¬ 
out assent in parliament they could not have laid the 
like sess or tax upon their subjects as was laid upon his 
client. 

Mr. St. John’s argument was listened to by a crowded 
audience which drank in every word he said, and when 
he closed he found himself one of the most famous Eng¬ 
lishmen of his day. 

The Solicitor General in reply to St. John made an 
able argument in support of the power of the king to 
issue ship writs requiring the aid of his subjects to pre¬ 
serve the kingdom and the people in case of an actual 
invasion or threatened invasion, and he undertook to de¬ 
fend the ship writ before the court, by showing what 
ought to be done and could be done when the whole realm 
was in danger of destruction by an enemy. He wholly 
ignored the fact that the ship writ issued to the sheriff 
of Buckinghamshire was dated Aug. 4, 1635, and did not 
require the ship that was to be furnished and equipped by 
that county to be at the port of Portsmouth until the 
1st day of March following, and that at the time the writ 
was issued and from thence until the case was being 
argued in 1637, England was at peace with all the world 
and there was ample opportunity to summon a parlia¬ 
ment; and he also ignored the still more important fact 
that there had been four annual issues of such writs and 
the aid required was not an emergency tax, but had be¬ 
come a regular annual assessment. Undoubtedly Charles 
I. and his advisers were right in insisting that England 


102 


needed a better navy to protect her from her enemies, blit 
the danger was a general and permanent one, and if the 
king could lay a tax for the defense of the sea there were 
no reason why he could not do the same thing to main¬ 
tain an army for the defense of the land; and if so, there 
would never be any occasion to summon another parlia¬ 
ment, and already none had been called for eight years. 
These general facts were what gave the case its im¬ 
portance and significance, but the learned solicitor gen¬ 
eral realized that if the judges could be induced as fore¬ 
shadowed by their extra-judicial opinion to dispose of the 
ship writ before the court, on the theory that it was issued 
to meet an unexpected exigency, he would have no diffi¬ 
culty in obtaining a judgment in favor of the king. 

The Solicitor General in answer to St. John’s position 
that the king could in parliament levy a ship-money tax 
for the defense of the kingdom, stated his own position as 
follows: 

“The only difference is de modo, whether the right media 
be observed by the king? And whilst we are disputing 
whether he may do it, I am told he may do it in parliament; 
true, he that may do it everywhere, may do it in Parliament. 
And I shall be sorry to hear there shall be no salvation for 
the people but in Parliament.” 

Realizing the force of St. John’s argument, and ad¬ 
mitting that it had been presented “with a great deal of 
care” and with Advantage and policy,” the Solicitor Gen¬ 
eral made this declaration: 

“I shall shew it from the foundation of the Kingdom, to 
that which they call the Norman Conquest; from the Norman 
Conquest to the time of Magna Charta, made 9 Hen. III. 
from Magna Charta to the Statute De Tallagio non conce- 
dendo, made 25 Ed. I. from the Statute De Tallagio non con- 
cedendo to the first granting of Tonnage and Poundage; from 


163 


Tonnage and Poundage to this very day, and that the Peti¬ 
tion of Right doth no way concern the dispute. I shall con¬ 
fute all precedents, objections, reasons, inconveniences, au¬ 
thorities or records, of which a great number were cited, that 
there shall not be a v syllable left; and in that, First, I will 
either shew that the record is mistaken, or impertinent and 
not to the question: Or, Secondly, Those that are pertinent, I 
will either agree them, or take the force of them away that 
none of them shall be able to stand in the way of the King 
in this way of defence.” 

And further on he said: 

“I see with what policy Mr. St. John went, and what multi¬ 
plicity of records he cited, and opened them with as much 
skill as ever 1 knew any man; but I desire to go in the path 
of naked truth. I shall make it appear to all the world, that 
the king hath done nothing but what his predecessors have 
done; and that there is not more testimony to prove Little¬ 
ton’s first case, that the heir at law shall have his patrimony, 
than there is to prove this the King’s right.” 

St. John had searched the old records for limitations on 
the power and prerogatives of the crown, and the Solicitor 
General with equal industry and care went into the old 
records in search of precedents showing that the kings of 
England had always exercised the like or a similar power. 
He had no difficulty in producing an overwhelming 
amount of this kind of evidence, for the truth is that as 
a general rule the English people had acquiesced in the 
exercise, on one plausible excuse or another, of authority 
by the recognized head of the nation, and it was only on 
sporadic and exceptional occasions that they asserted and 
maintained the right of representative self-government. 
Constitutional limitations of the power of the Crown 
were the exception and not the rule, and it w T as only by 
a very slow and gradual process that the great principles 


164 


of the constitution of England became fixed and perma¬ 
nent. 

We are, therefore, more interested, in knowing the 
answer of the learned Solicitor General to the express 
limitations contained in Magna Carta as confirmed by the 
statutes Confirmationes Chartarum and De Tallagio Non 
Concedendo, and in the Petition of Right, than in the 
precedents showing violations of these great statutes. His 
answer to Magna Carta as finally confirmed was a simple 
one. He pointed out that Edward I. was engaged in of¬ 
fensive wars in France and against the Scots and Welsh 
and that the confirmatory statutes were approved by the 
king to obtain supplies to enable him to carry on these 
wars, and that therefore, they applied to offensive or 
foreign war only, and had no bearing upon the preroga¬ 
tive of the king to call upon his subjects to aid at home 
in the defense of the realm. He further insisted that 
ship-money was an ancient aid which was within the sav¬ 
ing clause in the statute Confirmationes Chartarum, and 
that the Statute de Tallagio w T as a mere abbreviation of 
the other statute and did not eliminate the saving clause, 
and it was not in force and authority in the case as there 
was no record of it except that of Walsingham, a monk 
of St. Albans who was a mere chronicler, and not a true 
historian. His answer to the Petition of Right showed 
the weakness of his case more than any other part of his 
argument; it was in effect that the king had not really 
given his assent to the petition, and what he did do was 
on the assurance of the judges that as interpreters of the 
law they could protect his prerogatives. He said: 

“At the end of the Petition of Right, neither Lords nor 
Commons, jointly nor severally, can make a new law, without 
his consent; and that your Lordships, and none but you, are 
interpreters of the law, wise King James did declare.” 


165 


Mr. Holborne followed the Solicitor General in an argu¬ 
ment in behalf of Mr. Hampden. He first sought to have 
the court determine the case in favor of his client on the 
point that the ship writ issued to the Sheriff of Buck¬ 
inghamshire did not show a present and immediate dan¬ 
ger that the kingdom might be lost; but Lord Chief Jus¬ 
tice Finch remarked that, the court did not judge of 
cases by fractions, and Holborne was compelled to go on. 
He began by asking the indulgence of the court if he erred 
in his materials or in his way of argument; that if any 
matter or consideration of State should come in his way 
he would tread as lightly as he could, but he craved lib¬ 
erty to pick some for their lordships consideration, promis¬ 
ing to forbear things that were unfit. At this point Finch 
said to him: “Keep you within the bounds of duty as 
befits one of your profession at the bar at Westminster 
and you shall have no interruption.” 

Holborne replied that he would be “very wary and 
tender;” and after making a statement of the division and 
parts of his argument, said: 

“Before I enter into the argument further, whether the law 
hath intrusted the King out of Parliament in either of the 
cases put: I here profess for my client and myself, that while 
we speak of political advice, and how far a Governor subject 
to error and will, may use a regal power, we do always with 
thankfulness to God acknowledge our present happiness, to 
be blessed with so just a Prince; and we fetch it from our 
hearts. And were his Majesty so immortal as he deserves, 
and sure that his successor may be heirs to his virtues as well 
as to his crowns, we should wish the Royal power might be 
free from political advice, and unlimited.” 

Here the Lord Chief Justice said: 

“This belongs not to the Bar to talk of future government; 
it is not agreeable to duty to have you bandy what is the 


166 


hopes of succeeding Princes, when the King hath children of 
his own that are like to succeed him in his crowns and virtues. 

“My Lords, for that whereof I spake; I speak as looking 
far off many ages, five hundred years hence. 

“My Lords, because I might run into further error, if I 
should' not take your advice, I shall slip over much; and the 
sum of all is: 

“First, An argument from the policy of England, in the 
necessary attendance in the particular advice in Parliament. 

“Seondly, It will be from the absolute property that the 
subject hath in his goods.” 

He went on to say that Parliament, was part of the 
frame of the English government and stood in the way of 
the royal power, and 

“That therefore, the King can without Parliament charge 
the subject in his estate, tho’ in pretence for common good, 
no more than a prince five hundred hence, if subject to error 
or will, may if he will, upon any occasion, at what rate he will, 
charge the subject to the height.” 

Parliamentary restraint of the King as part of the 
policy of England, he asserted, was not made so much 
for a good King, but looking what might happen many 
ages after, and it was imposed upon the King, w T ho could 
do no wrong, “to make him come the nearer to the Divin¬ 
ity in the attribute.” 

Passing to a consideration of the great statutes on 
which he and his associate relied, Mr. Holborne made the 
following instructive comments thereon: 

“I shall offer the judgment of several ages in England; they 
even thought it a dangerous thing, when they thought any 
restraint fitting, to allow any exception whatsoever, tho’ cause 
for it, lest the Party, that was meant to be reftrained, should 


167 


be judge, and then go out when he would. Thomas of Beck¬ 
ett, he would not swear to the Laws of King Hen. the Second, 
unlefs he might put in this Expreffion, Salvo Honore Dei. 
The King never meant to violate any of thefe; but if that had 
been allowed, the Clergy had been Judges of that, therefore 
they would not be satisfied; at this Day we have an Experience 
of the opinion of Kings themselves in this case. 

I shall proceed to the practice of our Kings. In all Acts 
of Parliament, where they had even a (desire to declare the 
King limited or restrained, if they did admit of any exeption, 
they would have it in words so punctual, that they would not 
admit of any matter of evafion, for fear hereby his proceed¬ 
ing might be at large. In the grand charter of King John, 
Nullum Scutaghim Imponatur, there w T as a clause of Excep¬ 
tion; true, there was a reason to except how all (not as Ed. I. 
would have done) saving the aid due and accustomed; but the 
Faire Fitz Chevalier Ec. and so was Mag. Char, tho* not in the 
Roll, so careful they were to have no words that give any 
such light. 

“I come to the Statute of 25 Ed. I. against Aid, saving the 
antient aid due and accustomed; no doubt but in these words 
there was no more saved than law must allow the King, and 
the Parliament did 1 so mean; yet when that same Act came 
out, the subject was not satisfied, and therefore the Statute 
De Tallagio Noil Concedendo was made to take away the 
Exception in that Act. The Statute 28 Ed. I. after the Con¬ 
firmation of two Charters, and divers additions, there comes at 
least a Salvo Fure Cornoae. Your Lordships will find in 
History how all this was satisfied. And 29 Ed. I. at a Parlia¬ 
ment held at Lincoln, the King made a Confirmation without 
a Salvo, and yet none will deny the right of the Crown; the 
Lords did intend to preserve that. Thus your Lordships see 
the opinion of this kingdom, from time to time, how careful 
they ever were in all their acts, to leave the way whereby that 
which they did intend for their good might be avoided. Now 
whether in this case there might not be an advoidance I humbly 
leave it to your Lordships Judgments. 


168 


“But before I go further, it may be demanded, how came 
in those savings into those acts, if the parliament did not like 
them, and if they were put in here was a trust? 

“I shall give a double answer in the case; tho’ a Salvo, 
yet it will differ from our case; the King was not judge there, 
but your Lordships are judges between the King and his 
people: but in this case the King is to be judge of the necessity. 

“But to give you the true answer, the exception never came 
in originally from both houses, but from the Lords themselves; 
this may seem strange. It was the difference of those times 
and ours in making acts of parliament. Those were not times 
of granting all, or denying all, but to answer some as to some 
part, and sometimes an exception. And this being read, the 
act drawn up upon the whole by the King’s Council; and this 
mischief was found out 5 Hen. IV. and from that time all 
petitions were wholly granted or denied. So your Lordships 
see how these savings came in, not by the subjects, but by the 
penning, of the acts by the King’s Council. The last example 
is in late times in the late parliament, in the Petition of Right 
now printed, which was long in debate in Parliament against 
loans and billeting of soldiers. After the petition has passed 
the Lower House, that those things were against the law, there 
was a proposition in the Upper House concerning the addition 
of a clause of saving. Upon the journals it appears, that there 
were several conferences between both houses, where the 
reasons are mentioned, and do appear. And in the several 
conferences the commons did not yield, but the petition passed 
absolutely; and the reason was because to put in that saving 
was to undo the petition.’’ 

The Solicitor General had thrown as much discredit as 
he could upon Magna Carta, the Statutes Confirmationes 
Chartarum, de Tallagio Non Concedendo, and the Peti¬ 
tion of Right, and he had magnified the saving clauses in 
the first two. Mr. Holborne answered him by pointing 
out that Magna Carta of King John prohibited the King 


1G9 


from imposing scutage or aids except by consent of tlie 
Great Council; that scutage was a military service due 
from tenants by which an army of above 40,000 men 
could be raised for the defence of the realm, and that aids 
were from the commons as subjects of the King; and he 
argued that if scutages could not be imposed without con¬ 
sent, although they were for defense, aids for defense 
could not be distinguished from other aids, and they 
w T ere included in the prohibitory provision, Nullum scut - 
agium vel auwilium ponatur in regro nostro, etc., and 
they were not within the saving clause reserving to the 
King, aids for the ransom of his person, for the marrying 
of his eldest daughter and for the making of his eldest son 
a Knight. He insisted that when Henry III. confirmed 
Magna Carta, the lords demanded the confirmation of 
the charter of King John and that it w T as read and con¬ 
firmed verbatim. In proof of this he referred to a state¬ 
ment of Mathew Paris who lived in the King’s Court and 
ate with him at his table and who would not have dared 
to have written it if it had not been true. He said the 
original parliament rolls had perished by fire or some 
other mischance, and that they had been subsequently 
written up, and acts of a later time included, all with 
the same hand. 

Holborne made an elaborate reply to the argument that 
the Statute de Tallagio was not an act of parliament 
and contended that the recital in the Petition of Right 
that it was a Statute, expressing as it did, the judgment 
of parliament, was entitled to reverence. 

Mr. Holborne declared that Magna Carta as confirmed 
by Edward I. was no more than the common law of 
England and that the King did not have, in any case un¬ 
limited authority to charge the subject. If the King 


170 


made a grant of an office, fair, or market, and fixed the 
tolls to be charged the subject, as pontage or paueage for 
the bettering of passages, and the sum fixed was greater 
than the benefit the subject would receive, that is unrea¬ 
sonable, the law doth make it void; and he argued that 
if the law was thus careful in small things, as penny 
matters, it did “not leave the subject at the absolute lib¬ 
erty of the King to charge the subject when he will say 
the kingdom is in danger, and where there is no judge 
at all.” 

On the third day of his argument Mr. Holborne re¬ 
ferred to numerous instances in the parliamentary history 
of England where it was expressly declared or assumed 
that the consent of parliament was necessary to the 
validity of a charge or tax whether levied for defense of 
the realm or for a foreign war. On the fourth day he 
replied to the historical examples relied upon by the so¬ 
licitor general by showing that whenever the King had 
charged his subjects without their consent in parliament 
his power to do so was decried by them, and the practice 
was outbalanced by the contrary opinion and claim of the 
kingdom. He contended that a practice or custom could 
not become a law unless it was so frequent and general 
as to amount to the tacit consent of the whole realm, and 
if it appeared that there was no consent, no law. Re¬ 
viewing the precedents relied on by the solicitor general 
he demonstrated that they were not sufficient to show that 
the practice had become part of the law of England. 
Finally he argued that whatever the King might do in 
case of an actual invasion and imminent and immediate 
danger, he had no power to charge the subject on a mere 
apprehension of war or fear that there might be a war. 

In conclusion he assailed the writ before the Court on 
the ground that it did not provide for any method of ap- 


171 


portionment but left the assessment of the tax to the 
sheriff and while the law might trust the King it was a 
question,whether it would trust the sheriff; that in all 
cases of public charges the law takes an especial care to 
make an equality, by making the assessment upon hides 
of land or fifteenths of movables; that “If a Hundred be 
charged they have ways to lay it on themselves propor¬ 
tionately.” 

Some of the historians credit Mr. Holborne with hav¬ 
ing made a stronger and more pronounced constitutional 
argument than Mr. St. John, but he did no more than 
what would naturally follow to the counsel making the 
closing argument for Mr. Hampden. Mr. Holborne was 
probably the better logician, Mr. St. John the more adroit 
and skilful advocate. Together they were a pair worthy 
of the cause, and a great honor to the profession. 

The Attorney General made the closing argument in a 
dogmatic and declamatory speech for the king. Knowing 
that the Court was with him and would stay with him, he 
was not compelled like the counsel for Mr. Hampden, to 
speak with bated breath. He claimed that Jhe Kings of 
England had always been absolute Kings; that the ancient 
Britons were ruled by Kings; that the/Roman prefects 
could command what they pleased; that the Saxon Kings 
had uniformily exercised the power of compelling the 
people to maintain a navy, and that this was part of the 
laws of England as confirmed by William I; that the 
crown of England makes the King of England, not as his 
subjects are, a natural body, but a body politic; freeth 
him of all imperfection and infirmity; he is immortal and 
never dies, the King ever , liveth;” and “that the King 
he is vicarius Del; his power as was agreed is jure divino. 
God is the God of Hosts, and the King is the model of 
God Himself.” 


172 


The Attorney General referred to many things in the 
history of English,law in justification,of the legal theory 
that the King is supreme; that he had dominion of the 
land, and the sea, and of the soil under the sea; that he 
has a supreme jurisdiction over the land and the sea; 
creates all of his great officers and judges and the ad¬ 
miralty; has power to pardon offenses; to advance or 
debase the coin; to declare war and conclude peace; and 
to do numerous other things in virtue of his royal powder. 

The Attorney General mentioned the researches of Mr. 
Noy, his predecessor, and had no difficulty in citing many 
precedents, where the King had commanded the defense of 
the realm by the inland and as well as the maritime coun¬ 
ties, without the advice of parliament and during the 
very years and sometimes during the actual sessions of 
parliament; and he argued “that precedents that are not 
against the law, nor contrary to the rules or reasons of 
the law, make a Jaw.” 

On the third day of his argument the Attorney General 
contended that Magna Carta of King John was of no 
force because it was obtained by duress when there was a 
war or rebellion v between the barons, commonalty, and 
the king; that it had not been since confirmed and “the 
reason for it is that it trencheth too much,upon the pre¬ 
rogative of the King and Crown;” and if it was an act, 
its general words did not extend to take anything away 
that belongs of common right to the Crown.” In support 
of this kind of construction he referred to the provision 
that no man should be deprived of his life, property or 
liberty “except by the judgment of his peers or the law 
of the land,” and asserted that it in no way impeached 
the royal power for the royal power is the law of the land. 


173 


He adopted the same line of construction in his consid¬ 
eration of the confirmatory statutes of Edward I. and the 
Petition of Right, and as to the latter he made this state¬ 
ment: 

My Lords, in the next place they insisted upon the Petition 
of Right, 3 car. 

It was never intended that any power of the King by his 
prerogative should be taken away or lessened by it. 1 dare be 
bold to affirm for I was of that parliament, and present at the 
debate, that there was never a word spoken in the debate of 
taking away any power of the King for the shipping business.” 

“Besides it is declared, assented unto and denied by none, 
that there was no intention, by the Petition of Right, to take 
away the prerogative of the King. The King did thereby 
grant no new thing, but did only confirm the ancient and old 
liberties of the subject?” 

Mr. Holborne’s argument that exceptions had been in¬ 
serted in acts of parliament by the King’s Council in the 
penning of them, the Attorney General regarded as 
scandalous, and that such assertions against the records 
ought not to be made. 

He insisted that tonnage and poundage were granted 
for the ordinary defense of the realm, but not for ex¬ 
traordinary occasions; and he cited a large number of 
cases in the Court of the Exchequer where proceedings 
were instituted to compel the payment of charges im¬ 
posed by the king without the consent of parliament. 

In conclusion he said that “originally by the institution 
of the laws of the realm,” the King had this power and 
there were no acts of parliament taking it away from him. 

“My Lords, if there were no laws to compel to this duty, 
yet, nature and the inviolate law of preservation ought to 


174 


move us. These vapors that are exhaled from us will again 
descend upon us in our safety, and in the honour of our nation. 
Therefore let us obey the King’s command by his writ and 
not dispute it. He is the first mover amongst these orbs of 
ours; and he is the circle of this circumference; and he is the 
centre of us all, as the lines should meet; he is the soul of the 
body, whose proper act is to command. “But I shall need to 
use no persuasions to your lordships to do justice to this cause; 
and therefore I shall humbly desire judgment for the King.’’ 

The Attorney General and Solicitor General presented 
the case of their master, the King, with marked ability 
and made the most of the national necessity of main¬ 
taining England’s supremacy as a maritime power. The 
case they had compelled them to eliminate parliament 
from the constitution of England and to explain away, 
the limitations that had been placed upon the power of 
the crown. Charles I., was engaged in an effort to govern 
England without parliament and the lawyers who repre¬ 
sented him in the case before the court gave him their full 
support. 

Only two of the judges were to deliver their opinions 
at the same time, and for this reason the final judgment 
of the court was delayed for some months. 

Bibliography. “History of England,’’ by Samuel R. Gardi¬ 
ner vol. 8, pp. 271-276, contains a good account of the ship- 
money case. The report of the case in Hargrave’s State 
Trials, and Howell’s State Trials is very long, and to read it 
requires time and patience. To relieve my readers of the task, 
and partly for fear many of them never will take the trouble 
to read it, I have made the above review of the arguments in 
the case. 


175 


Yin. 

The Legislative. 

(Continued). 

The Ship-Money case of King v. John Hampden—Opinions 
of the judges—Seven for the King—Five for Hampden— 
Three of the five on technical grounds—Review of the opin¬ 
ions. 

Sir Francis Weston, one of the Barons of the Court of 
Exchequer, was the first to deliver an opinion in the 
Ship-Money Case. He held that the demurrer of Mr. 
Hampden admitted the danger which he thought on the 
whole record was sufficiently alleged. He had some 
difficulty in disposing of the statutes de Tallagio non 
Concedendo, the 14 Edward III., and the Petition of 
Right, but reached the conclusion that they were not 
intended to prohibit the King from charging the subject 
for the defense of the realm, and if they had that intent, 
they must give way to the necessity of defending the 
kingdom to prevent it from being lost. 

His opinion concludes: 

“For my own part I am persuaded in my conscience that 
there is imminent danger; I am satisfied in it, both by the 
King’s writ and that which is apparent to every one; and there 
is a necessity this danger should be prevented. I do conceive 
this writ to be grounded upon this danger of necessity; and 
that the danger appears sufficiently in the writ. Therefore 1 
conceive that the proceedings are legal and that there is good 
and sufficient cause to charge Mr. Hampden and that he ought 
to pay the 20s. assessed upon him.” 


176 


Sir Edward Crowley, one of the Justices of the Com¬ 
mon Pleas, went a step farther. Referring to the con¬ 
firmatory statutes of Edward I. and 14 Edward III., 
he said: 

“Admit, I say, there were an express act that the King, were 
the realm in never so much danger, should not aid from his 
subjects, but in parliament, it is a void act; will any man say 
such an act shall bind? This power is as inseparable from 
the crown as the pronouncing of war and peace is; such act is 
manifestly unreasonable and not to be suffered; saith Doctor 
and Student, to follow the words of the law, were in some 
cases injustice and against the good of the commonwealth; 
wherefore in some cases it is necessary to leave the words of 
the law and to follow that which reason and justice requireth; 
and to that extent equity is ordained, which is no other but an 
exception of the law of God, or law of reason, from the gen¬ 
eral rules of law. This imposition without parliament apper¬ 
tains to the King originally and to the successor ipso facto, if 
he be a sovereign in right of his sovereignty from the crown. 
You cannot have a King without these royal rights, no, not by 
an act of parliament.** 

Sir Robert Berkley delivered a very long and elaborate 
opinion in favor of the King. To give weight to his 
argument he started out by admitting that the subjects 
of the King of England “have a birthright in the laws 
of the Kingdom” and that “no new laws can be put upon 
them; none of their laws can be altered or abrogated 
without common consent in Parliament;” but beyond 
this limitation he held that the Kings of England were 
absolute monarchs; that from before the time of the 
Roman occupation of England, the frame of the king¬ 
dom had been, and was still, monarchial; “and our 
gracious ; sovereign is a monarch and the rights of free 
monarchy appertaineth unto him;” that he had never 
heard or read that the law was King, but that the King 


177 


is law, a living, speaking and acting law, for otherwise, 
he could not understand “how the King’s majesty may 
be said to have the majestical right and power of a free 
monarch.” 

He held that 14 Edward III. was only intended to be 
temporary, during the continuance of the wars then on 
foot, and that the statutes of Edward I. and the Petition 
of Eight should not be given a literal exposition and 
that charges for the defense of the kingdom were “clean 
out of the law as fully as if they had been precisely 
excepted,” and that if construed according to the letter 
only, laws made for the good of the commonwealth would 
prove the bane and ruin of it. 

Sir George Vernon, one of the Justices of the Common 
Pleas, delivered a very short opinion, in which he held 
that the King could charge his subjects for the safety 
and defense of the kingdom notwithstanding any act of 
Parliament and that a statute derogatory from the pre¬ 
rogative does not bind the King, and that the King 
could dispense with any law in cases of necessity. 

Sir Thomas Trevor, one of the baronets of the Ex¬ 
chequer, first complimenting the counsel in the case, 
expressed himself in a short opinion to the effect that the 
government of England was monarchial; that a demo- 
cratical government was never in the Kingdom; and 
the King “hath as much power and prerogative belonging 
to him as any prince in Christendom hath.” 

Sir George Croke, one of the Justices of the King’s 
Bench, has the honor of being the first one of the twelve 
Judges to deliver an opinion in favor of Mr. Hampden. 
He first spoke from the bench, and subsequently prepared 


178 


a more elaborate opinion, which was presented to the 
King. He summarized his rulings in both opinions, and 
as thus stated by himself he held: 

1. That the command of the ship writ before the court 

to make ships at the charge of the inhabitants 
of the county was illegal and contrary to and 
absolutely against the common law, not being by 
authority of Parliament. 

2. That if at the common law, it had been lawful, 

yet the writ was illegal, being expressly contrary 
to divers statutes prohibiting a general charge to 
be laid upon the commons in general without 
consent in Parliament. 

3. That it is not to be maintained by any prerogative 

or power royal. 

4. That no necessity or pretense of danger can give for 

the writ, for if the writ be against the common 
law, no pretense of danger can warrant it, 

5. That the writ was the first of the kind ever devised, 

and if it were legal to lay such a charge upon 
maritime ports, yet, to charge an inland county 
with making ships and furnishing them with 
masters, mariners and soldiers at their charge, 
which are far remote from the sea, is illegal and 
not warranted by any former precedent. 

6. That there was not any one precedent nor record 

judicial, or judgment in point of law, for the 
writ. 


Strong and absolute as these propositions of law were, 


179 


Croke sustained each and every one of them with irre¬ 
fragable proofs and arguments. He said that the chief 
argument for the King had been a multitude of records 
and precedents and he confessed that when he “heard 
these records cited and so learnedly and earnestly pressed 
by Mr. Solicitor and after by Mr. Attorney to be so clear 
that they might not be gainsaid, especially when his 
brother Weston, and his Brother Berkley, who had 
seen the records, pressed some of them and relied upon 
them for the reason of their judgments, he was much 
doubtful thereupon, until he had satisfied his judgment 
therein. He stated that he had read every one of them 
verbatim, and that there was not any precedent or record 
of any such writ sent, to any sheriff of any inland county 
to command the making of ships at the charge of the 
county; but this was the first precedent that ever was 
since the Conquest that is produced in this kind. 

He proceeded to show by an examination of each record 
in detail that the ship writs that were issued in prior 
reigns were simply writs to array the existing ships of 
the maritime ports and counties, and not to make ships, 
and that these writs did not issue to the inland counties 
because their inhabitants had no ships to array, but writs 
issued to them to array their fighting men as soldiers 
to defend the realm. 

The Solicitor General had placed much reliance on the 
extra-judicial opinion of all the judges that these ships 
writs were legal. 

Croke replied: 

“To this Opinion, I confess, I then with the rest of the judges 
subscribed my hand; but I then dissented to that opinion and 
then signified my opinion to be, that such a charge could not 


180 


be laid by such a writ, but by Parliament; and so absolutely in 
that point one other did agree with me, and dissented from 
that opinion; and four others, in some other particulars, from 
that which was subscribed. But some great part seeming abso¬ 
lutely to be resolved upon that opinion, some of them affirm¬ 
ing that they had seen divers records and precedents of such 
writs, satisfying them to be of that judgment; I was pressed to 
subscribe with them for that the major part must involve the 
rest, as it was said to be usual in cases of difference, and for 
that the lesser number must submit to the major, in opinion 
against one, or two where there are five judges, judgment is to 
be entered per cuii&m 9 if the major part agree, and the 
others are to submit to it: and in case of conference and cer¬ 
tificate of their opinions, if the greater part did agree and sub¬ 
scribed, the rest were to submit their opinions. And this by 
more ancient judges than myself was affirmed to be the con¬ 
tinual practice. And that it was not fit, especially in a case of 
this nature so much concerning the service of the king, for 
some to subscribe, and some to forbear their subscriptions. 
And that altho’ we did subscribe, it did not bind us, but that in 
point of judgment, if the case came in question judicially be¬ 
fore us, we should give our judgments as we should see cause 
after the arguments on both sides, and we were not bound by 
this sudden resolution. 

“Hereupon 1 consented to subscribe; but I then said, that in 
the meantime the King might be misinformed, by our certifi¬ 
cate under our hands, conceiving us all to agree together, and 
to give him this advice under our hands, and not know there 
was any dis-assented or was doubtful; but it was then said, the 
King should be truely informed thereof; and thereupon we 
that dis-assent, did subscribe our hands with such protestations 
as aforesaid, only for conformity, altho’ contrary to the opin¬ 
ion i then conceived. 

“But this being before arguments heard on either side, or 
any precedent seen, I hold that none is bound by that opinion. 
And if I had been of that opinion absolutely, now having heard 
all the arguments on both sides, and the reasons of the King s 


181 


Counsel to maintain this writ, and why the defendant is to be 
charged; and the arguments of the defendant’s counsel against 
the writ, and their reasons why the defendant should not be 
charged to pay the money assessed him; and having duly con¬ 
sidered of records and precedents cited and shewed unto me, 
especially those of the king’s side, I am now of an absolute 
opinion that this writ is illegal, and declare my opinion to be 
contrary to that which is subscribed by us all. And if I had 
been of the same opinion that was subscribed, yet upon better 
advisement being absolutely settled in my judgment and con¬ 
science in a contrary opinion, I think it no shame to declare 
that I do retract that opinion, for humanum est errare, rather 
than to argue against my own conscience. And therefore none 
having, as I conceive, removed those difficulties, I shall pro¬ 
ceed to my argument, and shew the reasons of my opinion, and 
leave the same to my Lords and Brothers. Not one precedent 
nor record in any precedent time, that hath been produced or 
shewed unto me, that doth maintain any writ, to lay such a 
charge upon any county inland or maritime. 

Justice Oroke first took up for consideration the com¬ 
mon law on the subject. He had begun writing law 
reports in 1581 when he was twenty-one years old, and 
had acquired habits of care and discrimination in the 
examination of records. He wrote his opinion as pre¬ 
sented to the King in 1637, when he was in his seventy- 
seventh year, and at a time when but little was known 
of the old Anglo-Saxon records, and not much more of 
those of the reigns of the Norman kings of England. 
Nearly five and three-quarters centuries had elapsed since 
the battle of Hastings and it was not until about two 
centuries later that Kemble dug up the Anglo-Saxon 
records first published in the Codex Diplomaticus. 

It is a credit to Croke’s legal attainments that the com¬ 
mon law as to the imposition of general charges or taxes 
was what it is now known to have been. He placed his 


182 


reliance on records and writings subsequent to the con¬ 
quest in which it was held or assumed, without reference 
to statutory requirements, that no general tax or charge 
could be imposed without the consent of the common 
council of the kingdom. He closed this part of his opin¬ 
ion with the following comments on a parliamentary rec¬ 
ord of 1379: 

“2 Ric. II., par. 1. The parliament roll proveth this directly; 
although it be no act of parliament, yet, the record is much to 
be regarded, for it sheweth what the law was then conceived to 
be: for Scroppe, the lord chancellor, then shewed to all the 
lords and commons assembled in parliament, that all the lords 
and sages had met together since the last parliament and hav¬ 
ing conferred of the great danger the kingdom was in, and 
how money might be raised in case of imminent danger, which 
could not stay the delay of a parliament, and the king’s coffers 
had not sufficient therein; the record is, they all agreed moneys 
sufficient could not be had without laying a charge upon the 
commonalty, which, say they, cannot be done without a par¬ 
liament; and the lords themselves, for the time, did supply the 
said necessity with money they lent: which record proveth 
directly, that this charge without an act of parliament is ille¬ 
gal.” 

Passing from the common law 7 to a consideration of 
the statutory law on the subject, Croke made the follow¬ 
ing exposition of the great statutes which constitute the 
charters of English liberty. 

‘‘I conceive, if the common law were doubtful in this, 
whether such a charge might be imposed by writ; yet it is made 
clear by divers express statutes, that the king is not to lay any 
charge upon his subjects, but by their consent in parliament; 
and that is, by many acts of parliament in force and not 
repealed: and there is no doubt but that the king by oath 
being bound to perform the statutes of his realm. 


183 


‘The Statute of 25 Ed. I, cap. 5, which is in these words, 
“forasmuch as divers people of our realm are in fear, that the 
aids and taxes which they have given us before-time towards 
our wars, and other businesses of their own grant and good¬ 
will, however they were made, might turn to a bondage of 
them and their heirs; because they might be at other time 
found on the roll; and likewise for the prises taken throughout 
our realm by our ministers; we have granted for us and our 
heirs, that we shall not draw any such aids, taxes or prises into 
a custom, for any thing that hath been done heretofore, by any 
roll, or any other precedent that may be found. 

“Ibid, cap. 6. ‘Moreover, we have granted for us and 
our heirs, as well to archbishops, bishops, priors, and other 
folk of the holy church; as also to earls, barons, and all the 
commonalty of the land; that for no business from henceforth 
we sail take any aids, taxes, nor prises, but by the common 
assent of the realm, and for the common profit thereof, (sav¬ 
ing the ancient aids and prises due and accustomed) which 
are the express words of that statute. Now, what those ancient 
aids were is well known, that they were ad redimendum 
corpus, ad filium primogenitum militem faciend et ad filiam 
primogenitam maritand.” Which aid concerns not the subject 
in general, but particular men were liable thereunto by their 
tenures. So this saving need not to have been; for the body 
of the act extended not to them, but to the general aid of the 
kingdom. 

“However, if this salvo, as it hath been objected, would pre¬ 
serve this aid now in question, yet the statute made afterwards, 
de tailagio non concedendo, being without any salvo, takes it 
away; which statute, Rastal in his abridgement, fol. 441, in 
his title to taxes, abridgeth in this manner: ‘Anno. 25, Ed. 1, 
it is ordained, that the taxes taken, shall not be taken in cus¬ 
tom nor but by the assent of this realm, except the ancient aids 
and taxes: and there the tax of 40s. upon the sack of wool is 
released. 

“Ibid. ‘That no tallage, by us or our heirs in our realm, be 


184 


put or levied, without the assent of the archbishops, bishops, 
earls, barons, knights, burgesses, and other free commons of 
our realm; that nothing be taken from henceforth, in the name 
or by reason of maltout’ of a sack of wool. Statute de tallagio 
non concedendo.” 

“Object. Mr. Solicitor laboured much to prove, that there 
was no such statute, de tallagio non concedendo: 1, for that 
it was not to be found on the rolls of parliament. 2. For that 
it was not set down when it was made. 3. That it was but 
an abstract out of confirmatio chartarum libertatum. Mr. 
Attorney said, he would not deny it to be a statute, neither 
would he affirm it; but that yet it did not extend to take away 
the aid demanded, by prerogative or power royal for the 
defence of the kingdom. 

“Response. To this I answer, this was never doubted to 
be a statute until this argument; and that it is a statute, appear- 
eth: 1. For that it is printed in the book of statutes, for a 

statute. 2. It is recited in the Petition of Right, to be stat¬ 
ute. To that it is not found on the rolls, answer, that many 
statutes that are known statutes, are not found on the rolls, as 
Mag. Char, is not. 

“And as to touching the time, I conceive it to be made 24 
Ed. 1, cap. 1, for so it is set down in the great book of stat¬ 
utes, printed 1618, to be the first statute therein made, viz., in 
these words: No tallage nor aid shall be taken or levied by 
us or our heirs, in our realm without the good will and assent 
of the archbishops, bishops, earls, barons, knights, burgesses, 
and other freemen of the land. 

“And that it is a statute, all my brothers have agreed. 

“The only doubt then is, whether this statute extendeth to 
aid for the defence of the kingdom; which I think it doth: for 
it is the precise words of it, that no tallage or aid shall be 
imposed but by grant in parliament, which extends to all man¬ 
ner of aids; and by this law the subjects of England have de¬ 
fended themselves ever since, as with a buckler, as faith 
Bodinus, fo. 97, whereby it appeareth, that notice was taken 


185 

of this law in foreign parts, and so held still to be a statute in 
force. 

The next statute is 14 Ed. Ill, cap, 1, which recites the 
grant of the great subsidy of the ninth fleece, the ninth lamb, 
etc., formerly granted; whereupon these words follow: ‘We 
are willing to provide for the indemnity of the said prelates, 
earls, barons, and others the commonalty of the realm, and 
also of the citizens, burgesses, and merchants aforesaid, will 
and grant for us and our heirs, to the same prelates, earls, 
barons, and commons, citizens, burgesses, and merchants, that 
the same grant shall not be had forth in example, nor fall to 
their prejudice in time to come, nor that they be from hence¬ 
forth charged or granted to make any aid, or sustain any 
charge, if it be not by the common assent of the said prelates, 
earls, barons, and other great men and commons of the said 
realm of England, and that in the parliament; and that all the 
profit arising of the said aid, and of wards, marriages, customs, 
and escheats, and other profits, arising out of our said realm 
of England, shall be set and dispended upon the maintenance 
of the safe-guard of this realm of England, and of our war in 
Scotland, France, and Gascoigne, and in no place elsewhere 
during our war.’ 

“By this statute it appeareth that it is expressly provided 
that the subjects should not be from thenceforth charged nor 
grieved to make any aid, nor sustain any charge but by com¬ 
mon assent, and that in parliament; which is as express as may 
be and exclusive to any charge otherwise; which I conceive 
was against the appointment of making, or preparing and 
sending out of ships at the charge of the towns wherein they 
were, or sending men out of their own counties* at the charge 
of the county. 

“Object. Now, whereas it is alleged by my brother Wes¬ 
ton and my brother Berkley, that this was but a temporary 
statute, and ended when the war ended, which appeareth by 
the last clause for employment of those profits towards those 
wars; I conceive it appeareth to be an absolute and perpetual 
statute, for it is granted for him and his heirs in perpetuity. 


And also it appeareth by Plowden in his Comment, fol. 45 7, 
in Sir Thomas Worth’s case, where a grant is by the name of 
the king, which is in his politic capacity; this extendeth against 
him, his heirs, and successors, altho’ they be not named. Also 
the intendment of this law appeareth to be for the security of 
the subjects, from thenceforth for all future ages. And then 
the office of judges, as appears by Sir Edward Coke, his re¬ 
ports, lib. 5, fol. 7, and Plowden’s comment, in Aston and 
Stud s case, is to construe statutes according to the true intent 
of the makers thereof, which was in this statute, that it should 
be a perpetual security for the subjects. And to little purpose 
it had been, to make a statute to continue but during the time 
of the war, or during the king’s life. 

“Object. Also where it is alleged that the statute of Ed. 
111., is not mentioned in the Petition of Right, which is some 
argument that it was not conceived to be continuing statute. 

“Response. To that I answer, that in the Petition of Right 
it is said, that by the statute there recited, and other the good 
statutes of this realm, the subjects shall not be compelled to 
pay any taxes, tallage, aid, nor other like charge not set by 
parliament; in which the statute is as well intended as other 
statutes, and as far as if it had been expressly recited. Also it 
appeareth by all the books of statutes, that this statute is 
granted as a statute continuing, whereas others expired, are set 
down as expired. 

“21 Ed. III., pars. 2 m. 1 1. A subsidy being granted by a 
Parliament, viz., 40s on every sack of wool transported be¬ 
fore Michaelmas following, and 6d on every 20s of Merchan¬ 
dise for the safeguarding merchants and defence of the coast, 
etc. After Michaelmas, viz. 31 Octob. 21, Ed. III., by writ 
the collectors were commanded to continue the collection of 
those subsidies until Easter. But 26 Nov. 21 Ed. III., the 
king by writ commanded the stay of the 6d. in the 20s. and 
to continue the collection of the subsidies upon the sacks of 
wool until Easter. 


187 


22 Ed. III., Rot. Pari. m. 16. The parliament being 
holden in Lent, the commons complain of the continuance of 
this collection of the subsidies upon the sacks of wool longer 
than the parliament had granted it, and provided that it should 
not be continued longer than Easter, at the procurement of any 
person. By this it appeareth, that the parliament being careful 
that the time for levying of a subsidy granted, should not be 
enlarged by any power, much less would they admit of a writ 
to lay a charge without grant by parliament. 

“25 Ed. III., m. 8. It was enacted that no man should be 
compelled to find men at arms, other than such as hold by 
such service, except it be by common assent in parliament. By 
this appeareth, that if men be not compellable to find a man at 
arms, unless it be by common assent in parliament; much less 
is any bound to be contributory to the preparing of a ship with 
180 men at arms, and victuals, and wages of soldiery for 26 
weeks, unless it be common assent in parliament. 

“Rot. Pari. 21 Hen. V. Num. 22. An act of parliament, as 
1 count it, in the very point, is in these words: For that of 
late, divers commissions were made to divers cities and bur¬ 
roughs within the realm, to make barges and barringers, with¬ 
out assent or parliament, and other wise than hath been done 
before these; however the commons do pray the king that 
these commissions may be repealed, and that they may not be 
of any force or effect. To which it is answered, that the king 
willeth that the said commissions be repealed; which is an 
absolute and perfect statute. * * * 

“But then there are added these words: ‘But for the great 
necessity he hath of such vessels for the defence of the realm 
in case that the war shall happen, he will treat with his lords 
of this matter, and afterwards will shew it to the commons to 
have their counsel and advise in this point. So by the record 
it appeareth that the commons did conceive, that no cities, 
burroughs, nor towns, without consent in parliament, were to 
be charged with the making of such vessels; to which the king 
agreeth. And from that day to this, until the making of these 


188 


writs, irr no age, altho’ the kingdom hath been many times in 
danger of invasion, and hath been invaded, there do not ap^ 
pear any records that ever I have seen, of writs directed to any 
towns or cities at their charges, to make or prepare any ships 
or vessels whatsoever. 

“Object. And whereas it hath been objected, and espe¬ 
cially insisted upon by my brother Berkley, that this latter part, 
that the king will treat with his lords concerning them, and 
after confer with the commons, is a gentle denial of that act; 
as the experience is at this day. ‘Le Roy se avisera* is a denial 
of an act. 

“Response. Hereupon 1 answer. It is an absolute act, for 
it is an absolute assent to the petition. And that which came 
after was but a plausible excuse, for that such commissions had 
gone out; and this farther consultation never appeared to be 
made, nor ever any such writ or commission for such vessel to 
be made went out since until this writ. 

“13 Hen. IV. m. 10. A grant is of a subsidy of wools, 
woolfels, hides, and other things there mentioned, and of ton¬ 
nage and poundage for one year, for the defence of the 
marches of Calais, etc., and for the defence of the realm and 
the safeguard of the sea. And therein is this express proviso, 
‘Provided, that this grant of a subsidy of wools, etc., and ton¬ 
nage and poundage, in time to come, shall not be taken in 
example to charge the lords and commons of this realm with 
any manner of subsidy for the safeguard of Calais, etc., nor 
for the defense of the realm, nor the safeguard of the seas, 
unless by the will of the lords and commons of the realm, and 
that by a new grant to be made and that in full parliament to 
come.’ By this appeareth that it was then provided, that no 
charge should be laid on the lords or commons, no not for the 
defence of the realm, but by grant in full parliament. 

“13 Hen. IV. m. 43. A petition was in parliament reciting, 
that there was an office granted of Alnager within London 
and the suburbs of the same, with fees to that appertain¬ 
ing, where any such office never was, nor any such fees 


189 


appertaining thereunto; and that by colour thereof, they 
levy one half-penny of the buyer and a half-penny of 
the seller, and upon sale of every hundred ells of canvas 
a penny of the seller and a penny of the buyer, wrong¬ 
fully against the statutes in the time of your highness’s 
progenitors made to the contrary, by which it is ordained and 
that no tallage nor aid shall be granted nor levied without 
assent and consent of the lords and commons of your realm, 
as by the said statutes is fully declared; wherefore they prayed 
that such letters patents made thereof shall be void and holden 
for none. And this was granted; whereby it appeareth that 
it is declared then in parliament, that those statutes were and 
did continue; that no tallage or aid shall be levied without 
grant in parliament. 

“I. Ric., II., c. 1. It is enacted in these words: ‘Our sov¬ 
ereign lord the king remembering how the commons of this 
realm, by new and unlawful inventions, and inordinate cov- 
etize, have, against the laws of this realm, been put to great 
servitude and importunate charges and exactions, and espe¬ 
cially by a^ new impost, called a benevolence, whereby divers 
subjects of this land, against their wills and liberties, have paid 
great sums of money, etc. It is enacted and ordained, that the 
subjects and commons of this realm from henceforth shall in 
no wise be charged by such charges or impositions called a 
benevolence, or such like charge: And that such exactions 
called a benevolence, before that time taken, shall be taken 
for no example to make any such, or any like charge, from any 
of his subjects of this realm hereafter, but shall be damned and 
nulled forever.’ By this it appeareth that it is expressly pro¬ 
vided that the subjects shall not be charged by way of benevo¬ 
lence which is in nature of a free gift, nor such like charge; 

' that is no charge of money shall be laid upon the subjects 
upon any pretence whatsoever, be it for defence in time of 
danger, or guarding the sea. 

“The last and concluding statute is the Petition of Right, 


190 


made in the third year of his majesty’s reign, reciting that it 
was enacted by a statute made in the time of Edward I., com¬ 
monly called Statutum de Tallagio non Concedendo, that no 
tallage or aid shall be laid or levied by the king or his heirs in 
this realm, without the good will and assent of the archbishops, 
bishops, earls, barons, knights, and others the freemen of the 
community of this realm. And by a statute of 25 Ed. III. 
That none shall be compelled to make any loans to the king, 
because such loans were against reason and franchise of the 
land. And by another statute, that none shall be charged by 
any impositions called a benevolence. By which statutes, and 
other the good statutes of this realm, your subjects have inher¬ 
ited the freedom that they shall not be compelled to contribute 
to any taxes, tallage, aid, or other like charge not set by par¬ 
liament. 

“And then they pray that none be compelled hereafter to 
make or yield any gift, loan, benevolence, tax, or such like 
charge, without common consent by act of parliament. And 
after five other things there mentioned, the conclusion is: ‘All 
which they pray as their rights and liberties.’ Unto which the 
king answers, ‘Let right be done as is desired.’ Which is a full 
and perfect statute, showing in this point the liberty of the 
kingdom prayed and allowed; which was not done without the 
advice of the judges, whereof I was one, whose opinions were 
then demanded and resolved that the same did not give any 
new liberty, but declared what the liberty of the subject was in 
this amongst others, that they should not be compelled to be 
contributory to any tax, tallage or aid, nor any like charge not 
set by parliament. All which statutes, those of 25 Ed'. L, 34 
Edw. and 14 Ed. III., being in the negative and in force, I 
conclude that these writs to lay such a charge is against the 
law, and so the assessments by colour thereof unlawful.’’ 

Sir William Jones, one of the justices of the Kings 
Bench, delivered an opinion in favor of the king. He was 
somewhat annoyed and perplexed by the outburst of 


191 


popular approval which had greeted Croke’s opinion. 
He said: 

I say it is a great case; it concerns the king in his royal pre¬ 
rogative and the subject in his interest, in his land and goods, 
and liberty of his person. They that have spoken already, and 
they that shall speak after me, shall hardly escape the censure 
of the people, of some that have some understanding, of some 
peradventure that have less, and of some that have none at 
all, but speak according to their opinions, affections, or wills. 
Faelices assent artifices, si per solos artifices judicarenter : we 
should be happy to be judged by them that are learned; but 
when it is by them that understand not, then it is turned into 
calumny and reproach. 

Some have taxed them that have gone, or will go with the 
king, as tho they were fearful, and went about to captivate the 
liberty of the people, and take away their goods. Some are 
taxed on the other side, if on the contrary, that they are given 
to popularity: so as I may say as the Psalmist, Domine, me po- 
suisti in lubricoioco ; for it is impossible to escape their tongues, 
and between those two decks of censure I am like to fall. And 
however I may fall with my sentence, with God’s grace I shall 
make no ship-wreck of my conscience. 

“I am trusted by the king to display his justice equally to 
all, and sworn to dispense his just prerogative, as well as the 
subjects liberty: and if we do otherwise than as judges, we do 
as false men. If any man offend contrary to his oath, he doth 
forfeith his lands, goods, and tenements. I shall not therefore 
for any respect do against my own conscience; but descend to 
give judgment, not regarding the watry mouths of others.” 

Justice Jones, as he expressed it, was an old man, and 
ready for the grave, and he wished his tongue and his 
heart to go together. His opinion indicates that he was 
an able and conscientious judge. He held that it was 
the duty of the king to defend the realm on the land and 
on the sea, and that the right to issue ship-writs in case 


192 


of great danger was necessary to enable him to perform 
this duty. He made a distinction between charges im¬ 
posed for the private use of the king, and charges im¬ 
posed for defence; and his opinion upon this whole mat¬ 
ter was, that judgment should be given against Mr. 
Hampden for the 20s with this limitation, that none of it 
should come to the king’s purse, for if it did, his opinion 
was against it. There is one passage in Jones’ opinion 
that should be quoted as showing the disposition he made 
of one of the significant records: 

“The next is 1 3 Hen. IV. The charges of Id. upon a cloth 
for measuring, adjudged void. I conceive it was not adjudged 
void upon that point. True, in parliament it was complained 
of as a grievance to the subject; but every petition in parlia¬ 
ment doth argue a right: it may be it was ad damnum, yet 
absque injuria; that case differs much from this, for there was 
a charge to a private benefit, and no regard to the public, 
which perhaps the law will not allow, but where there is a 
quid pro quo; nor of the case of dice, cards, monopolies, those 
cases nothing like this: so the commission of sewers may lay 
a charge for the repair of a bank; when the lands are over¬ 
flown, and the owners be not able, the neighborhood must be 
taxed; so in case of a bridge.” 

Sir Richard Hutton, one of the justices of the Court 
of Common Pleas, followed in an opinion strongly sup¬ 
porting Justice Croke, and in which he replied to the 
arguments of Justice Jones. On the effect to be given 
to the record of 13 Hen. IV., when it was held by parlia¬ 
ment that the king could not fix the fees of an officer 
appointed by him, he said: 

“For the authority of the year-books; 1 will confirm those 
two authorities cited by my brother Croke, tho’ my brother 
Jones slight the authority, 1 3 Hen. IV. the principal case, being 
then a grant of an office of measuring cloth, and put in prac¬ 
tice; and being granted out of parliament condemned to be 


193 


void; for the king can not grant any common charge on his 
people but in Parliament. And thro’ my brother Jones said 
that perhaps such a charge was damnum yet, not injuria; surely 
had there not been more in it, it had not been damned as ille¬ 
gal. 

Sir John Denham, one of the barons of the Court of 
Exchequer, was very old and ill, and not able to be 
present during all of the argument. He held in favor 
of Mr. Hampden on the ground that the King’s majesty 
being of a corporate capacity could not take any lands 
or goods from any of his subjects but by and upon a 
judgment in the Exchequer, or some other court of 
record. 

Sir Humphrey Davenport, chief baron of the Ex¬ 
chequer, on the main question adhered to the extra¬ 
judicial opinion of the judges, but decided in favor of 
Mr. Hampden on a number of grounds, which very much 
restricted the king in the exercise of his prerogative of 
defending the realm. He held that the ship writ issued 
in this case was not good in law, because it was directed 
to the sheriff, mayor, bailiffs and burgesses, of an inland 
county, to prepare a ship for service, and as they had 
no ships it was impossible to be performed; and that the 
power of taxation conferred on the sheriff by the writ 
was not legal, because the sheriff could not tax himself; 
he could not bind himself in default; and he could not 
commit himself to prison there to remain till such time 
as the king should deliver him; that the sheriff could not 
be given power to tax at his discretion, but should be 
required to summon a jury of assessors of four in each 
town to make the assessments, and that two other assess¬ 
ors should tax the four assessors. 

Davenport agreed that the king was the sole judge of 


194 


the existence of danger, and that his finding on that 
question as set forth in the writ could not be traversed, 
but this writ was defective because it contained no ex¬ 
pression that the kingdom was in immediate danger; 
that the power to issue such w r rits in anticipation of a 
future danger had been taken away since the time of 
Henry II. by statute, 25 Edward I., and other statutes. 

He further held that the ship writ, not being return¬ 
able, had spent its force, and could not be revived by the 
certiorari and the mitimus; that the writ of scire facias 
could not be sustained because the ship writ directed 
that the money should only be used to prepare a ship, 
and it did not appear that one had been prepared, or 
whether there had been a. surplusage of money collected, 
and there was nothing in the record to bring the money 
to the king, who was not as the record stood, entitled 
to a judgment for it. 

He further held, that the record w T as not sufficient to 
charge Mr. Hampden because the mitimus only set forth 
the tenor of the record, when the record itself should 
have been certified, for otherwise two executions might 
issue on one judgment. 

Sir John Finch, Chief Justice of the Court of Common 
Pleas, had suggested the issue of the ship writs to the 
king, and was called their inventor. He delivered a 
lengthy opinion in favor of the king, and went so far 
in defense of the royal prerogatives as to excite great 
popular disapproval. 

Finch declared that the sea and the land make but one 
kingdom, and that the king is the lord and sole proprietor 
of the sea, and is sovereign of the sea,, and that without 
a navy this authority could do but little good. 


195 


The king holds this diadem of God only, all others hold 
their lands of him, and he of none but of God; but this is but 
to light a candle for others. From hence only I will observe, 
that none other can share with him in his absolute power. 

A Parliament is an honourable court; and I confess it an 
excellent means of charging the subject, and defending the 
kingdom; but yet it is not the only means. An honour the 
last with more respect remember than myself, when they were 
pleased to choose me for their speaker. And as my brother 
Hutton said, I conceive it a fit way to charge the subject, and 
I wish that some, for their private humour, had not sowed the 
tares of discontent in that field of the common wealth, then 
might we have expected and found good fruit. But not the 
best way to redeem this lost privilege (for which we may give 
those only) is to give all opportune appearance of obedience 
and dutifulness to his majesty’s command. 

“The two houses of Parliament without the king cannot 
make a law, nor without his royal assent declare it: he is not 
bound to call it but when he pleaseth, nor to continue it but at 
his pleasure. Certainly there was a king before a parliament 
for how else could there be an assembly of King, Lords and 
Commons? And then what sovereignty was there in the king¬ 
dom but this? His power then was limited by the positive 
law; then it cannot be denied but originally the king had the 
sovereignty of the whole kingdom both by sea and land, who 
hath a power of charging the whole kingdom.” 

Finch placed the king under personal obligations to 
him with the following statement of the king’s good in¬ 
tentions : 

“In the next place, I shall remove a scandal that hath been 
put upon the king, how that his majesty hath meant to make a 
private personal profit of it. 

“What he hath done is well known; and I dare confidently 
say, all hath been spent, without any account to himself, and 
that his majesty hath been at great charge besides towards the 
same; and 1 heard it from his own royal mouth, he spake it to 


196 


me, and my Lord Brampton can testify as much, that he said, 
it never entered into his thoughts to make such use of it; and 
therefore said, he was bound in conscience to convert it to the 
use it was received for, and none other; and that he would 
sooner eat the money, than convert it to his use. Therefore, 
he that thinks that the king made a revenue of it, doth highly 
slander his majesty. But let kings be as David was, Men after 
God’s own heart, yet they will not want a Shimei to rail on 
them.” 

The most noteworthy thing in Finch’s opinion is his 
holding that the power of the king to levy taxes for the 
defense of the realm was supreme, and could not be taken 
from him even by an act of parliament. He construed 
Magna Carta, and the other great statutes from that 
standpoint, and so far as they impaired this prerogative 
of the king, he held them void. The constitutional article 
in Magna, Carta he construed as restrictive of the power 
of the king to levy taxes for his private benefit and for 
the defense of his own person, and it did not bar him 
from levying such as were for the public good. Finch 
then went on to say: 

“The statute of tonnage and poundage given to the king, 
for and towards the defence of the sea, and the other acts of 
Parliament, that restrain the King’s power, so that he cannot 
now charge the subject without his consent in Parliament, I 
shall answer in the next place; and before 1 come to the par¬ 
ticular acts, I will shew what, in my opinion they may do. 

1. Acts of Parliament may take away flowers and orna¬ 
ments of the crown, but not the crown itself; they cannot bar 
a succession nor can they be attained by them, and acts that 
bar them of possession are void. 

2. No act of Parliament can bar a king of his regality, as 
that no lands should hold of him; or bar him of the alleigance 
of his subjects; or the relative on his part, as trust and power 
to defend his people: therefore acts of Parliament, to take 


197 


away his royal power in the defence of his kingdom, are void 
as my Lord Chief Baron said: they are void acts of Parliament, 
to bind the king not to command the subjects, their persons 
and goods, and I say, their money too: for no acts of Parlia¬ 
ment make any difference. Now to the particular statute 
objected. 

( 1 ) 25 Ed. I., Chap. 5, Confirmatio Chartarum, the words 

are these, aids or taxes, granted to the king shall not be taken 
for a custom or precedent: and cap. 6. Moreover, we have 
granted for us and our heirs, that for no business from hence 
forth, we shall take such manner of aids, taxes, nor prises, due 
and accustomed. And cap. 7, a release of toll upon every sack 
of wool: and grant, that we will not take such things without 
their common assent and good liking, saving to us and our 
heirs, the customs granted by the commons aforesaid. 

“As to the other statute, de Tallagio non ConcedencTo, cap. 

1, Nullum tallagium imponetur nisi per commune concilium 
regni nostri, cap. 2, 3, 4, 5, etc. 

First: These words must have relation to the aids before, 
and there be divers aids; as some by taillage, some by way of 
prise upon goods, and ransom of his majesty’s person, etc., 
the king thereupon makes this grant, which hath relation to 
such aids as were granted voluntarily. 

“Secondly: Ancient aids are there reserved, as redeeming 

the king’s body, pur faire fitz Chevalier, eur marier son file 
eigne: and so all other ancient aids, which are to be under¬ 
stood with and redimendum corpus, etc. 

And to the statute de Tellagio non Cancedendo, in some 
books it is not in print, but mentioned in Mag’ Char’ Rastal, 
and the Petition of Right, 3 Car. 1628, to be in 24 or 25 
Edw. I. 

And therefore I answer, it is not in the Parliament-Roll and 
there is variance about it; and therefore it is but an abstract 
and no substantial statute. 

“But since it hath passed for a statute, and possibly may be 
one, 1 agree with all the rest of my brothers, that it is a statute: 


198 


And then I answer, ( 1 ) That nullum tallagium imponetur, etc., 
that is, no unlawful taillage shall be imposed upon the subject 
without his consent; or else the aids pur faire fitz chevalier e pur 
file marier, had not been excepted. (2) No aids shall be 
imposed but by contribution of the king and people; and here 
the king is taxed as well as they. (3) An act of Parliament 
can by no means take it away, much less by those general 
words. 

Obj. In 14 Ed. III., cap. 1. No man from henceforth 
shall be chargeable, but by common consent in Parliament. 

To this I answer, that tho’ it be but temporary in some parts, 
yet it is binding only secundum subjectam materiam: and the 
words are general, as in the other statute de tallagio, etc., be¬ 
sides, the practise in that king’s time, and after, best interprets 
it. 

Obj. 25 Edw. III., cap. 8. No finding of men at arms, 
unless by consent, much less finding of ships. 

Answ. This takes not away any former law; and therefore 
the precedents following, 4 Hen. IV. shew that it does not 
reach to this case. 

Obj. 2 Hen IV. m. 2, which is absolute in the point, saith 
my brother Croke, where a commission went forth for the de¬ 
fence of the sea, whereof complaint was made in Parliament, 
with desire that it might be repealed, and it was done. 

Answ. I am of the contrary opinion; for the petition was, 
that it might be released and the answer was but this, that it 
should, but the king would treat with the council about it; and 
it was but a repeal of his commission then only. 

Obj. 1 Ric. III., cap. 2, where the king grants, that he 
would not hereafter charge them by benevolence, or any such 
charge, but that they should be damned by the law, by no 
such charge or imposition, i. e., by no such charge of money. 

Answ. That statute was only against benevolences, and 
made by a king that had reason, as we all know, to please the 
people for his own ends. 


199 


Obj. 2. The statute of tonnage and poundage, granted 
for the defence of the sea, the words are, that no taillage or 
aid shall be without act of parliament 2. That the king hath 
means to defend the kingdom, with a protestation not to draw 
it into Example, 4 Hen. IV. 1 3 Hen. IV. Pari. Roll. m. 1 0. 

Answ. I will not argue whether tonnage and poundage was 
before this act of parliament, nor that time out of mind they 
were granted to the king: but my answer is, they are only for 
the ordinary of the sea. And the protestation of 4 Hen. IV. 
is a protestation of the commons only; and this charge is not 
taken away thereby, and tonnage and poundage is for and 
towards the defence of the sea: so all the acts are and so I 
agree. 

But for extraordinaries, and but solely in case of danger of 
the whole kingdom, that they should not be granted, cannot 
be collected out of these grants. 

The last objection is the Petition of Right, 3 Car. That no 
charge shall be imposed on the subject, but by Parliament. 

Answ. I was then speaker of the lower house, and I have 
reason to remember what then was made. And I say: 1. 
There is not mention of this case. 2. There was no new thing 
granted, but only the ancient liberties confirmed, taking notice 
of the common protestation, not to bind the king from his 
ancient rights. 3. Look upon the prayer what is desired; and 
the main scope was: (1) Generally against loans, and this 
could not be included in these words. (2) Imprisonment with¬ 
out shewing cause. (3) Billeting of soldiers. And (4) Mar¬ 
iners lying within the land.” 

Sir John Brampston, Chief Justice of the King’s 
Bench, delivered an opinion in which he sustained the 
king on every point but one. As to that he agreed with 
Chief Baron Davenport, that no money was demanded 
by the king by the first writ or by the second writ, and 
for this reason no judgment could be given that the 
money be paid to the king. 


200 


Croke and Hutton have the honor of delivering opin¬ 
ions which were against the king on the great question 
of the power of the king to levy the tax. Under the 
opinion of Davenport not much was left of the preroga¬ 
tive as it could only be used in cases of immediate and 
sudden danger. 

Denham expressed no opinion on the merits, and like 
Brampton, decided in favor of Mr. Hampden on a thin 
technicality, which, however, had this merit: It made it 
clear, that if the ship writs had directed the sheriffs to 
levy and collect the tax, and pay the money into the 
treasury of the king for the building of a navy, they 
would have been legal in the opinion of ten of the twelve 
judges, except that Davenport would have required a 
more positive expression of imminent danger. 

Judgment was rendered against Mr. Hampden June 
12, 1638. 

BIBLIOGRAPHY. As far as I have been able to discover 
there is not extant any work in which the arguments of counsel 
and the opinions of the judges in the ship money case are care¬ 
fully analyzed and stated. This is my apology for the labor 
bestowed upon the foregoing and the preceding lecture or 
chapter, and I hope they will be as interesting and instructive 
to others as the work of preparing them was to me. It should 
be borne in mind that the ship-money case arose 277 years 
ago, when the principle of representative taxation and legisla¬ 
tion was yet in the infancy of its development, and that which 
is very plain now was not so plain then. 




















































































































































































































































































































































































































































■ 











201 


IX. 

The Legislative. 

(Continued.) 

The Ship-Money case—The judgment of the judges in favor 
of the King reviewed by the House of Lords—Judgment of the 
House of Lords reversing the judgment of the judges—Act of 
Parliament declaring ship-writs illegal—Impeachment of the 
judges—Impeachment of the Earl of Straford and the Arch¬ 
bishop of Canterbury, and their execution under bills of attain¬ 
der—Trial and execution of Charles 1.—Constitutional docu¬ 
ments of the Commonwealth and the Protectorate. 

•John Hampden as the defendant in the Ship-money 
case, was entitled to have the case reviewed on a writ of 
error by the House of Lords as the court of last resort 
for the ultimate decision of any civil action; but no 
parliament had then been summoned for nine years, and 
there was nothing to indicate that Charles I. would ever 
call another parliament. 

In the spring of 1640 he was constrained to call one, 
but it proved refractory and after sitting three weeks 
was dissolved by the King, and is known as the “Short 
Parliament.” Later in the year, the condition of his 
kingdom was such that Charles was compelled to con¬ 
vene a parliament, and Nov. 3, 1640, the sessions of that 
famous parliament, known as the “Long Parliament/’ be¬ 
gan. 

One of the first things it did was to take the necessary 
proceedings to reverse the judgment against Hampden. 
Oliver St. John had been returned as a member of the 


202 


House of Commons, and he was charged by that house, 
with the duty of laying the case before the House of 
Lords, which he did at a conference of both houses. 

After the conference the Lords came to the following 
resolutions: 

Die Mercur. 20 die Jan. 1641. 

It was resolved by the Lords upon the question, Nemine 
contradicente. 

1. That the ship writs, the extra-judicial opinions of the 
judges therein, both first and last, and the judgment given in 
Mr. Hampden’s case and the proceedings thereupon in the 
Exchequer Chamber are all illegal, and contrary to the laws 
and statutes of this realm, contrary to the rights and properties 
of the subjects of this realm, and contrary to former judgments 
in Parliaments, and contrary to the Petition of Right. 

Die Veneris 26 die Februari, 1641. 

“Upon the report of the right honorable the Lords Com¬ 
mittee appointed to consider of the way of vacating of the 
judgment in the exchequer concerning ship-money, it was or¬ 
dered by the Lords Spiritual and Temporal in the High court 
of Parliament assembled, that the Lord Keeper or the Master 
of the Rolls, the two Lord Chief Justices, and the Lord Chief 
Baron, and likewise the chief clerk of the Star-Chamber shall 
bring into the upper house of Parliament the record in the 
Exchequer of the judgment in Mr. Hampden’s case concerning 
ship-money and also several rolls in each several court of 
King’s Bench, Common pleas. Exchequer, Star Chamber and 
Chancery, wherein the judges extra judicial opinions in the 
cases made touching ship-money be entered and that a Vacat 
shall be made in the upper House of Parliament of the said 
several records: And likewise the judgment of Parliament 
touching the illegality of the said judgments in the exchequer, 
and the proceedings thereupon; and touching the illegality of 
the extra judicial opinions of the judges in the said several 
courts, concerning ship money, be annexed and apostiled unto 


203 


the same. And that a copy of the judgment of the Parliament 
concerning the illegality of the said judgment in the exchequer, 
and the said extra-judicial opinions of the said judges concern¬ 
ing ship-money be delivered to the several judges of Assize; 
and that they be required to publish the same at the assizes in 
each several county within their circuits, and to take care that 
the same be entered and enrolled by the several clerks of 
Assizes; And if an Entry be made by any Custos Rotulorum, 
Clerk of Assize of the said judgment in the Exchequer or of 
the said extra-judicial opinions of the judges, that Vacata be 
made thereof, per Judicium in Parliamento: And that an act 
of parliament be prepared against the said judgment and extra¬ 
judicial opinions, and against the proceedings touching ship- 
money. 

“AN ACT FOR THE DECLARING UNLAWFUL AND VOID THE 
LATE PROCEEDINGS TOUCHING SHIP-MONEY, AND FOR THE 
VACATING OF ALL RECORDS AND PROCESS CONCERNING THE 
SAME.” 

WHEREAS, divers writs of late time issued under the great 
seal of England, commonly called Ship-Money Writs, for the 
charging of the ports, towns, cities, boroughs and counties of 
this realm respectively to provide and furnish certain ships for 
his Majesty’s service: (2) And whereas upon the execution of 
the same writs and returns of certioraries thereupon made, and 
the sending the same by mittimus into the court of exchequer, 
process hath been thence made against sundry persons pre¬ 
tended to be charged by way of contribution, for the making 
up of certain sums assessed for the providing of the said ships, 
and in especial in Easter term in the thirteenth year of the reign 
of our sovereign Lord the King that now is, a writ of scire facias 
was awarded out of the court of exchequer, to the then sheriff 
of Buckinghamshire, against John Hampden, esquire, to appear 
and shew cause, why he should not be charged with a certain 
sum so assessed upon him; (3) upon whose appearance 
and demurrer to the proceedings therein, the barons of the 
exchequer adjourned the same case into the exchequer-cham- 


201 


ber, where it was solemnly argued divers days, and at length it 
was there agreed by the greater part of all the justices of the 
courts of king’s bench, and common pleas, and of the barons 
of the exchequer, there assembled, that the said John Hamp¬ 
den should be charged with the said sum so as aforesaid 
assessed on him; (4) the main ground and reasons of the 
said justices and barons which so agree, being, that when the 
good and safety of the kingdom in general is concerned, and 
the whole kingdom in danger, the King might by writ under 
the great seal of England, command all the subjects of this his 
kingdom, at their charge, to provide and furnish such number 
of ships with men, victuals and munition and for such time as 
the king should think fit, for the defence and safeguard of the 
kingdom from such danger and peril, and that by law the king 
might compel the doing thereof, in case of refusal or refrac¬ 
toriness; (5) and that the king is the sole judge, both of the 
danger and when and how the same is to be prevented and 
avoided; (6) according to which grounds and reasons, all the 
justices of the said courts of king’s bench and common pleas 
and the said barons of the exchequer, having been formerly 
consulted with by his Majesty’s command had set their hands 
to an extra judicial opinion, expressed to the same purpose; 
which opinion, with their names thereunto, was also by his 
Majesty’s command inrolled in the courts of chancery, king’s 
bench, common pleas and exchequer, and likewise entered 
among the remembrances of the court of star-chamber, and 
according to the said agreement of the said justices and barons, 
judgment was given by the barons of exchequer, that the 
said John Hampden should be charged with the said sum so 
assessed on him; (7) and whereas some other actions and 
process depends, and have depended, in the said court of 
exchequer, and in some other courts against other persons, for 
the like kind of charge, grounded upon the said writs, com¬ 
monly called ship-writs, all which writs and proceedings as 
aforesaid, were utterly against the law of the land. 

II. Be it therefore declared and enacted by the King’s 
most excellent majesty, and the Lords of Commons, in this 


205 


present parliament assembled, and by the authority of the 
same, that the said charge imposed upon the subject, for the 
providing and furnishing of ships, commonly called ship- 
money, and the said extra-judicial opinion of the said justices 
and barons, and the said writs, and every of them, and the said 
agreement or opinion of the greater part of the said justices 
and barons, and the said judgment given against the said John 
Hampden, were and are contrary to and against the laws and 
statutes of this realm, the right of property, the liberty of the 
subjects, former resolutions in parliament, and the petition of 
right made in the third year of the reign of his Majesty that 
now is. 

III. And it is further declared and enacted by the authority 
aforesaid, that all and every the particular prayed or desired 
in the said petition of right, shall from henceforth be put in 
execution accordingly, and shall be firmly and strictly holden 
and observed, as in the same petition they are prayed and 
expressed; (2) and that all and every the records and remem¬ 
brances of all and every the judgment, inrolments, entry and 
proceedings as aforesaid, and all and every the proceedings 
whatsoever, upon or by pretext or colour of any of the said 
writs, commonly called ship-writs, and all and every the de¬ 
pendents on any of them, shall be deemed and adjudged to all 
intent, constructions and purposes, to be utterly void and dis¬ 
annulled; and that all and every the said judgment, inrolments, 
entries, proceedings and dependents of what kind soever, shall 
be vacated and cancelled in such manner and form as records 
use to be that are vacated. 

Thus ended the most important secular judicial con¬ 
test in the history of the world; the greatest law suit 
any court, either of original jurisdiction or of last resort, 
ever had occasion to decide. It is not too much to say, 
that every American lawyer, jurist and legislator ought 
to be familiar with the report of the case, and be 
thoroughly imbued with the great principle of representa¬ 
tive government which it inculcates and teaches. Long 


206 


before the case arose the House of Commons had become 
an integral part of parliament, and the conclusion finally 
reached in the House of Lords as the court of last resort 
in England, ratified and confirmed as it was by a solemn 
act passed by both houses and approved by Charles I. 
himself, anchored forever in the hearts of the men who 
speak the English language, the great principle of repre¬ 
sentative government that no taxes or charges can be 
levied against them without their consent or that of their 
immediate representatives. 

To make the proceedings of parliament still more im¬ 
pressive, the commons presented articles of impeachment 
against the offending judges who were still on the bench 
and against Finch, who had been promoted by the King 
to the post of Lord Keeper of the Great Seal as the suc¬ 
cessor of Lord Coventry. Pending the adoption of the 
articles of impeachment against Finch, he requested to 
be and was heard by the Commons and made an able 
defense of himself, w T hich went far to show that he had 
acted conscientiously and not as a mere time server; but 
the vote for his impeachment was nearly unanimous 
Finch, after an interview with the King, fled across the 
sea in a vessel belonging to the Royal Navy and took 
refuge in Holland, where he remained in exile for a 
number of years, until conditions in England were favor¬ 
able for his return. His estates in England were seques¬ 
trated, but his wife was allowed to retain possession at a 
rental of £100 a year. 

Justice Berkley was fined £20,000 fo be paid in six 
weeks, but in consideration of immediate payment, it 
was reduced to £10,000. He was disqualified from hold¬ 
ing any place of profit or honor in the state or common¬ 
wealth. 


207 


Baron Trevor was fined £6,000, which he immediately 
paid. 

Baron Weston was not brought to trial, but by resolu¬ 
tion of the Commons he was disqualified from acting as 
a judge. 

The impeachment proceedings against Crawley, Daven¬ 
port and Brampton, were dropped. 

The Commons also impeached Thomas Wentworth, the 
Earl of Straford and the chief adviser of the King; and 
William Laud, archbishop of Canterbury. The first 
charge against the Earl of Straford was, that he “hath 
traitorously endeavored to subvert the fundamental laws 
and government of the realms of England and Ireland, 
and, instead thereof, to introduce an arbitrary and ty¬ 
rannical government against law; which he hath de¬ 
clared by traitorous words, counsels and actions; and by 
giving his majesty advice by force of arms to compel his 
loyal subjects to submit thereunto.” 

The first charge against the Archbishop of Canterbury 
was, “that he hath traitorously endeavored to subvert the 
fundamental laws and government of the kingdom; and 
instead thereof to introduce an arbitrary and tyrannical 
government against law; and to that end hath wickedly 
and traitorously advised his majesty that he might at his 
own will and pleasure levy and take money of his sub¬ 
jects without their consent in Parliament. And this 
he affirmed was warrantable by the law of God.” 

The King Avas very anxious to save the life of the Earl 
of Straford, and a majority of the House of Lords were 
of the same mind, but the King acted with so little judg¬ 
ment, and the course of events was so strong, that al- 


208 


though the Commons abandoned the impeachment pro¬ 
ceedings, and resorted to a bill of attainder, the Lords 
were constrained under the influence of a powerful argu¬ 
ment by Oliver St. John to pass the bill, and it went to 
the King for his approval. 

Charles Stuart was still King of England, and if he 
had been a courageous man, he would have withheld the 
royal assent, and saved the life of his most able and 
faithful adviser; but to save himself from mob violence 
he abandoned Straford to his fate, and appointed a 
commission to approve the bill, in his name, with the 
result that Straford’s own brother signed his death war¬ 
rant. May 12, 1641, Straford was executed on Tower 
Hill, in the presence of two hundred thousand persons, 
who assembled to witness what was regarded by the par¬ 
liament party as an act of justice. 

The articles of impeachment against the archbishop 
were presented to the House of Lords by a committee of 
the Commons consisting of Pym, Hampden and May¬ 
nard, February 26, 1641, but his trial did not commence 
until March 12, 1643. The Commons had difficulty, as in 
Straford’s case, in convincing the Lords that the charges 
against the archbishop were within the statute of trea¬ 
sons, and resort was again had to a bill of attainder. 

The civil war had been in progress for more than a 
year, and the breach between the King and parliament 
had become complete. The assent of the King was not 
regarded as necessary, as the two houses acted on their 
own authority. The force of precedent and custom im¬ 
pelled them to still enact laws in the name of the king 
with the consent of the Lords and Commons, the Kinn 
in his politic capacity being regarded as assenting to 


209 


whatever was agreed upon by the two houses. January 
10, 1644, the archbishop was executed on Tower Hill. 

The skill of Oliver Cromwell as a disciplinarian and 
a general gave the parliamentary party success in the 
war, and the Commons took upon themselves the govern¬ 
ment of England. When the King was brought to Lon¬ 
don as a prisoner the Commons passed an act erecting 
“a high court of justice for the trying and judging of 
Charles Stuart, king of England.” The court consisted 
of some one hundred and twenty-eight persons with Lord 
Fairfax and Oliver Cromwell at the head. The first 
charge against the King was that he had raised the stand¬ 
ard of war against parliament. 

“That the said Charles Stuart being admitted 
king of England and therein trusted with a limited 
power to govern by and according to the laws of 
the realm, and not otherwise; and by his trust, 
oath and office, being obliged to use the power 
committed to him, for the good and benefit of the 
people and the preservation of their rights and 
liberties; yet nevertheless out of wicked design 
to erect and uphold in himself an unlimited and 
tyrannical power to rule according to his will and 
to overthrow the rights and liberties of the peo¬ 
ple; yea, to take away and make void the founda¬ 
tions thereof, and of all redress and remedy of 
misgovernment, which by the fundamental constitu¬ 
tions of this kingdom were reserved on the people’s 
behalf, in the right and power of frequent and suc¬ 
cessive parliaments or national meetings in coun¬ 
cil ; he the said Charles Stuart, for the accomplish¬ 
ments of such his designs and for the protecting 
of himself and his adherents in his and their 
wicked practices to the same ends, hath traitor¬ 
ously and maliciously levied war against the pres¬ 
ent parliament and the people therein represented.” 

The King was tried in the Painted Chamber with all 
possible adherence to the ancient forms and ceremonies. 


210 


He was convicted and on the 30th day of January, 1649, 
in the open street before Whitehall, his head was severed 
from his body. The executioner held it up to show it to 
the people, saying “Behold the head of a traitor.” 

The execution of Charles I. has excited as much human 
interest as any other single event in the history of Eng¬ 
land. It has been highly praised or gently praised, and 
on the other hand mildly censured, or vehemently con¬ 
demned, according to the views or bias of those who have 
written on it. 

The offense of which Charles Stuart was guilty was not 
that of high treason as defined by the statutes of Eng¬ 
land, but that was the fault of the statutes, and not the 
lack of guilt on the part of the King of the crime of 
treason, if that offense is regarded as a natural one, 
founded in reason and justice, and is not wholly created 
by statute, so as to be included in crimes mala prohibita, 
as distinguished from those which are mala in se. 

The statute of treasons, 25 Edward III. c. 2, gives us 
a clearer view of the extent to which the royal power 
and dignity of the kings of England have been exalted 
in English law, than any other statute. It makes the 
offense of high treason the highest and most heinous 
crime known to the law, and it is directed exclusively 
against acts concerning the king himself, the royal fam¬ 
ily, and his prerogatives of coining money and the ad¬ 
ministration of justice by his justices, and the keeping 
of his money by his treasurer. 

The Latin words designating the offense of high trea¬ 
son as known to the Romans, crimen laesae majestatie 
are apt and strictly accurate. 


211 


Statute 25 Edward III. de proditionibus. 

Whereas divers opinions have been before this time, in 
what case treason shall be said, and in what not; the king at 
the request of the lords and of the commons hath made a dec¬ 
laration in the manner as hereafter followeth: that is to say, 
when a man doth compass or imagine the death of our lord 
the king, of my lady his queens, or of their eldest sonne and 
heirs: or if a man doe violate the king’s compagnion, or the 
king’s eldest daughter unmarried, or the wife of the king’s 
eldest sonne and heire: or if a man doe lavie warre against our 
lord the king in his realms, or be adherent to the king’s ene¬ 
mies in his realme, giving to them aid and comfort in the 
realme or elsewhere, and thereof be provally attainted of open 
deed by people of their condition. And if a man counterfeit 
the king’s money into his realme counterfeit to the money of 
England, as the money called Lusheburgh, or other like the 
said money England, knowing the money to be false, to mer¬ 
chandise or make payment, in deceipt of our said lord the 
king and of his people, and is a man alay the chancellor, treas¬ 
urer, or the king’s justices of the one bench or the other, jus¬ 
tices in eire, or justices of assize, and all other justices assigned 
to heare and determine, being in their place doing their offices. 
And it is to be understood, that in the cases above rehearsed, 
it ought to be judged treason, which extend to our lord the 
king and his royal magestie; and of such treason the forteiture 
of the excheats pertaineth to our lord the king, as well of the 
lands and tenements holden of others, as of himself.” 

No wonder the Commons were not able to convince the 
Lords that the Earl of Straford and the Archbishop of 
Canterbury were guilty of treason, and the monarchial 
party in England has considered the execution of the 
King as without warrant in law and illegal; which was 
true if the kingship was the main and most essential part 
of the government; but it is now known and recognized 
that the Parliament was and is the supreme and sover¬ 
eign power in the government of England, and that no 


212 


act could be more of the true nature of treason than 
that of attempting to destroy and overthrow parliament 
by raising the standard of war, and actually levying war 
against it. 

From the standpoint of those who believe that repre¬ 
sentative government is the only government consistent 
with the natural rights of mankind, the conviction of the 
King was not an unjust verdict, but the sentence of 
death is censurable on two grounds: (1) the inhumanity 
of it, and (2) the bad policy of it. The only excuse for 
it, is that the death penalty had been for centuries, and 
for that matter still, is the recognized punishment for 
high crimes. The list of eminent persons in the service 
of the state, who had previously been executed in Eng¬ 
land on one charge or another is appalling. Those who 
were responsible for the execution of Charles I. were 
not able to see that Charles Stuart dead, would be a more 
dangerous enemy, than Charles Stuart deposed and im¬ 
prisoned or exiled. His execution put sentiment, and 
fanaticism into the monarchial party, qualities in which 
it was growing weaker. To have extinguished the cava¬ 
liers it would have been necessary to have slaughtered 
the whole royal family and a good portion of the nobility, 
and it is doubtful whether even this would have been 
effective. From the standpoint of policy the execution 
of the King was a crime. It rallied the royal party and 
enabled it more than any other one thing to restore the 
monarchy. There was no immediate reaction which was 
beyond the power of the parliamentary party to suppress, 
but in a few years after Cromwell had passed away, it 
came with irresistible force. 

Having got rid of the King, the parliamentary party 
undertook to establish a permanent government to take 


213 


the place of the Monarchy. Before the execution of 
Charles I. there were efforts to establish a firm and 
present peace, by instruments purporting to be agree¬ 
ments of the people, one draft of which was submitted 
to the council of the army October 26, 1647. A revised 
agreement of the people was submitted by the army to 
the House of Commons, January 20th, 1649. It was 
never adopted by that body. 

February 13, 1649, an act was passed for the appoint¬ 
ment of a Council of State of 41 members, over which 
parliament retained control. 

Acts were passed by the House of Commons March 17 
and 19, 1649, abolishing the office of King, and the House 
of Lords; and May 19, 1649, an act was passed declaring 
England to be a Commonwealth and Free State, to be 
governed “by the Supreme authority of this nation, the 
representatives of the people in Parliament, and by such 
as they shall appoint and constitute as officers and min¬ 
isters under them for the good of the people, and that 
without any King or House of Lords.” 

In that way the Long Parliament (reduced to the 
House of Commons) retained control of the government. 

This plan of government might have worked very well 
if the parliament had dissolved itself, and provided for 
a general election and a new and full parliament This 
the Long Parliament refused and neglected to do, but 
proposed simply to order elections to fill the vacancies 
which had occurred, thus practically taking the position 
that the existing members held for life, and that the 
newly elected members would hold by the same tenure. 
The existing members would determine the election and 
qualifications of the new members, and in that way the 


214 


Long Parliament could perpetuate itself indefinitely. 
Representative government cannot exist without recur¬ 
ring elections at regular or irregular intervals, and the 
Long Parliament for a number of years before it was 
dissolved by force of arms, ceased to be a representative 
body. There was no way of getting rid of it except by 
revolutionary action. It had become a self perpetuating 
oligarchy, one of the most odious forms of despotism, and 
it was due to the conservative efforts and action of Crom¬ 
well that it was permitted to exist as long as it did. 
Finally, even his patience was exhausted, and April 20, 
1653, with a troop of soldiers he drove parliament from 
its hall, and dismissed its council of state. He performed 
a great service for the people of England, and the popu¬ 
lar applause was as hearty as that which had greeted his 
great victories in the field. 

The constitution of England was undone. The king- 
ship, the House of Lords, and the House of Commons 
were gone. England was in the hands of the army with 
its commanding general, Oliver Cromwell, as military 
dictator. The work of destruction was an easy problem 
compared with that of reconstruction. The first definite 
steps in that direction taken by Cromwell was to issue 
writs, after the manner in which the kings of England 
summon the peers to the House of Lords, summoning 
129 representatives for England, five for Ireland and six 
for Scotland, to meet at the council chamber at White¬ 
hall July 4, 1653, to provide for the peace, safety and 
good government of the commonwealth. The persons 
summoned were selected by Cromwell, with the advice 
of the congregational churches in the counties and his 
council of officers. The writs were issued in the name of 
“Oliver Cromwell, captain general and commander-in-chief 
of all the armies and forces raised and to be raised 


215 


within this commonwealth.” This parliament is known 
as the “Nominated Parliament.” It contained no repre¬ 
sentatives elected by the people, and was more in the 
nature of a house of lords than a house of commons. It 
remained in existence until December 12, 1653, when it 
dissolved itself and surrendered its power into the hands 
of Cromwell. The council of officers had for some time 
been preparing a constitutional scheme, and proposed to 
confer on Cromwell the title of King. He declined the 
honor, not from a want of ambition, but for prudential 
reasons, and he was therefore given the title of Lord 
Protector. With this modification he approved the In¬ 
strument of Government which for the time being became 
the constitution of England. 

The first article of the Instrument of Government vests 
the supreme legislative authority in one person with the 
title of Lord Protector and in the representatives of the 
people assembled in parliament. It is difficult to say 
whether this clause was inserted as a partial recognition 
of the monarchy and the king in parliament, or was the 
result of a hasty amendment, when Cromwell refused to 
accept the title of king. Whatever the reason for this 
provision may have been it was shorn of its apparent 
significance by the twenty-fourth article which withheld 
from the Lord Protector any negative power. All bills 
were required to be presented to him for his consent, but 
if his objections were not satisfactory to parliament it 
could so declare, and the bills he disapproved would be¬ 
come laws without his consent. His objections and argu¬ 
ments were simply advisory. On principle this is all the 
power or influence any executive ought to have over 
legislation. 


The legislative power was left in the hands of the peo- 


216 


pie acting by their representatives. The provision “that 
the persons elected shall not have power to alter the 
government as it is hereby settled in one single person 
and a parliament/’ was construed by the first parliament 
of the Protectorate, as not comprehending the whole in¬ 
strument, “but that the same doth only include what con¬ 
cerns the government of the commonwealth by a single 
person and successive parliaments.” Acting upon that 
theory it framed a constitutional bill, which caused Crom¬ 
well to dissolve parliament at the very earliest date he 
was authorized to do so, January 22, 1655. 

By the Instrument of Government, parliaments could 
not be dissolved until they had been in session for five 
months, and Cromwell construed that to mean lunar 
months of 28 days each. 

The parliamentary constitutional scheme was an im¬ 
provement on the instrument of government; it provided 
for amendments by parliament with the consent of the 
Lord Protector; that the council should be nominated 
by the Protector and approved by parliament ; that war 
should be declared with the consent of parliament; that 
the parliament sitting, peace should be made with its 
consent; if not sitting, with the consent of the council 
under restrictions imposed by parliament; and that bills 
restraining, heresies, atheism, etc., should become law 
without the Protector’s consent. 

The last clause of the bill, that the militia ought not 
to be raised, formed, and made use of, but by common 
consent of the people assembled in parliament, etc., was 
not adopted by the parliament until January 20, 1655, 
and coupled with the other changes unsatisfactory to 
Cromwell, caused him to dissolve the parliament two 
days later. 


217 


The second parliament of the Protectorate did revise 
the Constitution of the Commonwealth by presenting to 
the Lord Protector the “Humble Petition and Advice” of 
May 25, 1657, and th’e addition thereto of June 26, 1657, 
both of which were approved by Cromwell. 

Provision was made for an upper house to consist of 
members nominated by his Highness the Lord Protector 
and approved by the Commons. 

The Lord Protector was authorized during his lifetime 
to appoint and declare the person who should imme¬ 
diately after his death succeed him in the government. 
He named his son, Richard Cromwell, as his successor, 
but there is no record of it. 

Cromwell died September 3, 1658, and was succeeded 
by Richard, with the approval of the nation. The son 
had none of the sterling and rugged characteristics of his 
father, lacked experience, and was unable to govern 
England. 

In May, 1660, the Monarchy in the person of Charles 
II. was restored. 

A conspicuous feature in the rule of Oliver Cromwell 
was the vigor of his foreign policy. With the aid of 
Robert Blake, the great naval commander, he subdued 
the Dutch, swept the seas and obtained control of the 
Mediterranean. 

He established that naval supremacy which has been 
retained by England to this day. 

The abortive attempts to establish a written constitu¬ 
tion are the forerunners of our American constitutions, 


218 


but they show that constitutions cannot be made to order, 
but must grow and develop and be in accord with the feel¬ 
ings, prejudices, hopes and aspirations of the people, and 
within their capacity. 

The more we look into it the more we realize that our 
American constitutions were a development under Amer¬ 
ican conditions of the best and most sacred precepts and 
principles of the English constitution. 

Our American constitutions have not ceased to grow 
since they were first adopted. In addition to the first ten 
amendments of the Constitution of the United States, six 
other amendments have been made, and our state consti¬ 
tutions have been amended and revised from time to 
time. 

The first ten amendments are to be regarded as a part 
of the original instrument, because they were adopted 
in pursuance of the recommendation of the Massachusetts 
convention, which had secured the ratification of the con¬ 
stitution by the requisite number of nine states. 

The Eleventh Amendment was adopted 1794-1797, to 
secure to the states the same immunity from suits as 
is accorded to the sovereign authority everywhere. In 
the United States the people are sovereign and no suit 
can be brought against them or against their government, 
unless authorized by an act of Congress. No suit can 
be brought against a state, unless authorized by an act 
of the State Legislature, or it is a suit brought by an¬ 
other State. 

The Twelfth Amendment adopted, 1803-1804, made a 
change in the method of electing the President and Vice- 
President. Under the original constitution the presiden- 


219 


tial electors of the several states voted for two persons, 
and the person receiving a majority and the highest vote 
was to be the President, and the next highest, Vice-Presi¬ 
dent, and in case no person had a majority or there was 
a tie vote the House of Representatives, voting by states, 
elected the President and the Senate elected the Vice- 
President. The consequences were that in the Presiden¬ 
tial elections of 1796, the two leading candidates, John 
Adams, representing one party, and Thomas Jefferson, 
the other party, were elected President and Vice-Presi¬ 
dent. 

In 1800 Thomas Jefferson and Aaron Burr, each re¬ 
ceived a majority vote of 73. The House of Representa¬ 
tives elected Jefferson president, and Burr, under the 
constitution, became vice-president. 

This experience and the controversies incident to the 
elections of 1796 and 1800, led to the adoption of the 
Twelfth Amendment, providing for the election of the 
President and Vice-President separately. 

The Thirteenth Amendment adopted in 1865 abolished 
slavery. 

The Fourteenth Amendment, adopted 1866-1868, makes 
all persons born or naturalized in the United States and 
subject to the jurisdiction thereof citizens of the United 
States and of the State wherein they reside. 

It further provides: “No state shall make or enforce 
any law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any state de¬ 
prive any person of life, liberty or property without due 
process of law, nor deny to any person within its juris¬ 
diction the equal protection of the laws.” 


220 


Tlie Fifteenth Amendment of 1869-1870 secured the 
right to vote to the freed slaves of the south by the gen¬ 
eral provision: 

“The right of citizens of the United States to vote shall 
not be denied or abridged by the United States or by any 
State on account of race, color or previous condition of 
servitude.” 

The Sixteenth Amendment adopted in 1911-1913 auth¬ 
orizes Congress to levy taxes on incomes from whatever 
source derived, without apportionment among the states 
according to population, a power Congress did not pos¬ 
sess under the original constitution as construed by the 
Supreme Court of the United States. 

Tlie Seventeenth Amendment still more recently 
adopted takes from state legislatures the power to chose 
United States Senators, and places it in the hands of 
the electors of the state. 

Written constitutions can grow and improve as well as 
unwritten constitutions; but great fundamental prin¬ 
ciples of law, gain strength by age. The law of the land 
clause of Magna Carta, now rendered “due process of 
law” found its final expression in this country, in the 
Fourteenth Amendment as a federal limitation on the 
states. 

# 

BIBLIOGRAPHY. “History of the Great Civil War, 
1642-1649“ in four vols., “History of the Commonwealth and 
Protectorate, 1649-1650“ in four vols., and “Constitutional 
Documents of the Puritan Revolution, 1628-1660“ in one 
vol., all by Samuel R. Gardiner, cover the period from the 
Petition of Right, 1628, to the Restoration, 1660. In the last 
named of the above works will be found the documents 


referred to in this lecture and many others of a constitutional 
nature. In the study of constitutional law and history we are 
not concerned with the religious controversies of the period 
under consideration; but are interested in studying the phe¬ 
nomena which helped to establish the doctrine of representa¬ 
tive taxation and legislation both in England and America, and 
which prevails, with but few exceptions, wherever the English 
language is the language of the people. 

For an able and dispassionate view of Cromwell I refer to 
Gardiner’s “Cromwell’s Place in History.’’ 





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223 


X. 

The Legislative. 

(Continued.) 

Reigns of Chas. II. and Jas. II.—Test Acts of 20 Chas. II., 
c. 2; 30 Chas. II., c. I ; 3 Jas. I., c 4; I Eliz. Stat. I, c. 2 ; 
I William and Mary, c. 8—Jas. II. continues customs duties by 
proclamation; establishes an Ecclesiastical Commission—Case 
of Godden vs. Hales, 1 1 St. Tr. 1 1 65—Declaration of Indul¬ 
gence—Case of the Seven Bishops—Prince of Orange takes 
possession of London—Convention Parliament of 1 688-9— 
Bill of Rights—Provisions of American constitutions securing 
religious liberty—Constantine’s Edict of Tolerance of A. D. 
313. 

The reaction from the “Great Rebellion” and Crom¬ 
well's “Commonwealth of England,” restored the mon¬ 
archy in 1660 in the person of Charles II, whose reign 
continued until his death in 1685. He was succeeded by 
his brother, the Duke of York, who became King of 
England as James II, but in three years he was forced, 
or rather permitted, to flee the Kingdom; crossing the 
Thames he dropped the Great Seal of England into the 
river, and it was held that he had abdicated his throne; 
but as a matter of fact he was deposed and the crown con¬ 
ferred on William, Prince of Orange, and his Avife, Mary. 

A great religious controversy was at the bottom of the 
English revolution of 1688, usually referred to by English 
historians as the “Glorious Revolution;” but as students 
of constitutional history Ave are not concerned with the 
merits of that controA^ersy, which we will leave to the the¬ 
ologians and doctors of divinity. 

We are not studying the controversies or the distinc- 


224 


tions and differences between Catholics and Protestants, 
or between the Church of England and those who con¬ 
formed to its creed and forms of worship, and the Cath¬ 
olics, the Puritans, the Independents, the Presbyterians 
and other non-conformists and dissenters. 

We are only interested in knowing what came out of 
the struggle for supremacy, and what effect it had on the 
English constitution and on American constitutions. 

In 1673 a statute, 25 Charles II, C. 2, was enacted, 
known as the Test Act. 

It either did not apply to or was not observed by mem¬ 
bers of Parliament or the sworn servants of the King or 
Queen; but in 1677, 30 Charles II, C. 1, it was extended 
to them, an exception being made of the Duke of York 
and of eighteen servants of the Queen. 

The test act required all officials, civil, military or 
naval, to take and subscribed the oaths of supremacy and 
allegiance prescribed by the act of 1605, 3 James I, C. 4, 
and also an additional declaration as follows: 

“I, A. B., do declare that 1 do believe that there is not any 
transubstantiation in the sacrament of the Lord’s supper, or in 
the elements of bread and wine, at or after the consecration 
thereof by any person whatsoever.” 

The statute, 3 James 1, C. 4, was based upon the acts 
of supremacy and conformity of 1558, 1 Eliz. S. 1, C. 2; 
the first of which required all bishops, ministers, and other 
ecclesiastical persons and all temporal judges, justices, 
mayors, and all other lay officers receiving fees or wages 
from the crown to accept and take an oath that the Queen 
was the supreme governor of the realm “as well in spiritual 
or ecclesiastical things or causes, as temporal,” etc. 


225 


The act of conformity was designed to compel all the 
inhabitants of the realm to accept the Church of England, 
with its episcopacy, liturgy and book of common prayer, 
as the only true and holy church. It was directed not only 
against Catholics, but also against Protestants and all 
others who did not embrace or conform to the Established 
Church. 

All these statutes and others of a like nature were ter¬ 
rible engines of religious intolerance and a disgrace to 
any country or any age; but they w r ere passed by both 
houses of parliament and respectively approved by Eliza¬ 
beth, James 1. and Charles II., and being acts of parlia¬ 
ment, they were the law until repealed by I William and 
Mary, C. 8 (1688) and slightly more moderate oaths pre¬ 
scribed. 

The growth of toleration in England was very slow; it 
was first extended to Dissenters who believed in the Trin¬ 
ity; then to Catholics; then to Unitarians and all Chris¬ 
tians; and after 1858 either house of parliament was per¬ 
mitted to admit Jews to membership; and in 1866 a new 
form of oath was prescribed, unobjectionable to the He¬ 
brews. 

Although solicited to do so by Charles II. the Duke of 
York refused to take the test oath, and when he became 
King he undertook to get rid of the act by an exercise of 
the royal prerogative of dispensing with or suspending 
acts of parliament, a power it was claimed the Kings of 
England still possessed. The immediate object he sought 
was commendable, but the means employed by him were 
disastrous not only to his cause but to himself. 

One of the first things he did was to issue a proclamation 
continuing the custom duties imposed by an act which 


226 


expired at the death of Charles II. Tonnage and poundage 
were only granted to the Kings of England for life, and 
James II. did not propose to depend upon parliament for 
any such grant. 

Another thing he did was to issue a. commission creating 
an Ecclesiastical Commission like the High Commission 
Court of Elizabeth, in violation of an act of the Long Par¬ 
liament which abolished the court of Elizabeth and pro¬ 
vided that no new court with like power, jurisdiction and 
authority should be thereafter erected. 

On the same day (July 5, 1641), the Long Parliament 
abolished the Court of Star Chamber. 

Following the course pursued by Charles I. in the matter 
of ship writs, James II. privately obtained the opinion of 
the judges that the dispensing power was a prerogative of 
the King. A collusive action was then brought and a 
formal decision and judgment obtained, establishing that 
doctrine. The case is that of 

Godden vs. Hales. 

1 1 State Trials, 1 165. 

7 Hargraves St. Trials, 611. 

Sir Edward Hales was lieutenant of the tower and had been 
admitted to the office of colonel of a regiment of foot. He 
was a Roman Catholic and had neglected to take the oaths of 
supremacy and allegiance and he had not received the sacra¬ 
ment, as required by the Test Act. He was indicted and 
found guilty and Godden, his servant, was induced to bring 
an action against him in the King’s Bench to recover the for¬ 
feit £500 imposed by that act. 

Lord Chief Justice Herbert, delivering the opinion and 


227 


judgment of the court, said that all of the twelve judges had 
been consulted, with this result: 

“We were satisfied in our judgments before, and having the 
concurrence of eleven out of twelve, we think we may very 
well declare the opinion of the court to be, that the King may 
dispense in this case. And the Judges go upon the grounds: 

1. That the Kings of England are Sovereign Princes. 

2. That the laws of England are the King’s laws. 

3. That therefore ’tis an inseparable prerogative in 
the King of England to dispense with penal laws in 
a particular case, and upon particular necessary rea¬ 
sons. 

4. That those reasons and those necessities the King 
himself is the sole judge: And then, which is conse¬ 
quent upon all, 

5. That this is not a trust invested in or granted to 
the King by the People, but the ancient remains of the 
sovereign power and prerogative of the Kings of 
England; which never yet was taken from them, nor 
can be. 

“And therefore such a dispensation appearing upon the 
record to come, time enough to save him from the forfeiture, 
judgment ought to be given for the defendant.” 

The King had dismissed some of the judges and put 
others on the bench secretly favorable to him. 

The decision “made a great noiseit was severely criti¬ 
cised; and the Chief Justice published a lengthy vindica¬ 
tion of himself. 

Having obtained a favorable decision from the judges 
of the three great courts of England James II. did not 
hesitate to exercise the power they held was legally his. 
April 4, 1687, he issued his Declaration for Liberty of 
Conscience, in which he not only suspended the test act, 
but also the conformity act of 1558, 1 Eliz., C. 2, which 


228 


required all the clergymen and inhabitants of England to 
accept the creed and faith, to use the book of common 
prayer, to administer and receive the sacraments, and 
observe the rites and ceremonies of the Church of England, 
and to attend sendees on Sundays and holy days. 

The following are extracts from the Declaration of In¬ 
dulgence : 

“We do likewise declare, that it is Our Royal Will and 
Pleasure, that from thence the execution of all and all manner 
of penal laws in matters ecclesiastical, for not coming to 
church, or not receiving the sacrament, or for any other non¬ 
conformity to the religion established, or for or by reason of 
the exercise of religion in any manner whatsoever, be imme¬ 
diately suspended and the further execution of the said penal 
laws and every of them is hereby suspended. 

“We do further declare that it is Our Royal Will and 
Pleasure, that the oaths commonly called the oaths of su¬ 
premacy and allegiance, and also the several tests and dec¬ 
larations mentioned in the acts of parliament made in the 
twenty-fifth and thirtieth years of our late royal brother King 
Charles the Second, shall not at any time hereafter be re¬ 
quired to be taken, declared or subscribed by any person or 
persons whatsoever, who is or shall be employed by the gov¬ 
ernment.” 

Not satisfied with what he had done, the King in coun¬ 
cil, May 4, 1688, issued an order that his declaration of 
indulgence be read at the usual time of divine service, on 
the 20th and 27th of May, in all churches and chapels 
within the cities of London and Westminster, and ten 
miles thereabout, and on the 3rd and 10th of June in all 
other churches and chapels throughout the kingdom, and 
the Right Reverend the Bishops were required to send and 
distribute the Declaration throughout their respective 
dioceses. 


229 


The best abbreviated account of the subsequent proceed¬ 
ings can be found in “Leading cases in (English) Consti¬ 
tutional Law,” by Ernest C. Thomas, published in 1885 
by Stevens & Haynes, London. 

Case of the Seven Bishops. 

4 Hargraves State Trials, 303. 

12 Howels State Trials, 183. 

“Six of the bishops met at the archbishop s palace at Lam- 
beth and drew a petition that the King would not insist upon 
their distributing and reading the Declaration, ‘especially be¬ 
cause that Declaration is founded upon such a dispensing 
power, as hath been often declared illegal in parliament, and 
particularly in the years 1662 and 1672, and the beginning of 
your Majesty’s reign.’ This petition six of them presented to 
the King in person. Shortly afterwards they were summoned 
to appear before the council to answer ‘matters of misde¬ 
meanour,’ and were told that a criminal information for libel 
would be exhibited against them in the King’s Bench, and 
were called upon to enter into their recognisances to appear. 
This they refused to do, insisting upon their privileges as 
peers; and were accordingly committed to the Tower. 

“On the 29th June the case came on, when they were 
charged with a conspiracy to diminish the royal authority, 
and in prosecution of this conspiracy with the writing and 
publishing of a certain ‘false, feignecF, malicious, pernicious and 
seditious libel.’ 

“After much time wasted in attempts to prove the hand¬ 
writings of the bishops, it was only done by calling Blathwayt, 
a clerk of the Privy Council, who had heard the bishops own 
their signatures to the King. 

“But the libel was charged to have been written in Middle¬ 
sex, and this could not be proved—as it had in fact been 
written at Lambeth, in Surrey. Accordingly Lord Sunderland 
was brought to prove the presentation to the King. 


230 


“The document was asserted by the prosecution to be a 
libel, because it urged that the Declaration was based upon an 
illegal power. 

“The counsel for the defense argued: 

“1. That the petition was a perfectly innocent petition, 
presented by proper persons in a proper manner. The bishops 
are intrusted with the general care of the church, and also by 
stat. 1 Eliz., c. 2, with the carrying out of this Act—the Act of 
Uniformity; and had a right to petition in this case. 

“2. As to their questioning of the dispensing power, no 
such power exists. The declarations of parliament sufficiently 
show this. In 1 662, when King Charles wished to extend an 
indulgence to the Dissenters, it was asserted by Parliament 
that laws of uniformity ‘could not be dispensed with but by act 
of parliament.’ In 1672, when the King had actually issued 
such a Declaration, upon the remonstrance of Parliament he 
caused the said Declaration to be canceled, and promised that 
it should not become a precedent. In 1685, when the King 
announced that he had certain officers in his army ‘not quali¬ 
fied according to the late tests for their employments,’ Parlia¬ 
ment passed an Act of Indemnity that ‘the continuance of 
them in their employments may not be taken to be dispensing 
with that law without act of parliament.’ Until the last King’s 
time, the power of dispensing ‘never was pretended,’ on 
which point Somers, as junior counsel for the defense, quoted 
‘the great case of Thomas vs. Sorrel,’ to show that it was 
there agreed by all that there could be no suspension of an 
act of parliament but by the legislative power. 

“The two questions left to the jury were: 1. Was the pub¬ 
lication proved?—a mere question of fact. 2. Was the pe¬ 
tition libelous? Wright, L. C. J., and Allybone, J., directed 
them that it was; Holloway and Powell, J. J., thought that it 
was not. 

“The jury having retired and been locked up all night, the 
next morning delivered a verdict of Not Guilty.” 


The 10th of June, 1688, was a fatal day for James II. 


231 


On that day the prosecution of the Seven Bishops was 
commenced by their commitment to the Tower, and to the 
custody of the same Sir Edward Hales; and on that day a 
Prince of Wales was born, as the heir apparent to the 
crown, displacing Mary, the sister of the King, who was 
the wife of the Prince of Orange, and who was himself the 
son of Mary Stuart, a daughter of James I. 

On the very day the jury acquitted the Bishops seven 
of the Great Lords of England secretly sent to the Prince 
of Orange an invitation to come to England with an army 
and take possession of the throne and the kingdom. 

Less than six months afterwards, December 18, 1688, 
the Prince and his general, Schomberg, took possession of 
London, and James II., in the royal barge, attended by 
eight or ten boats loaded with Dutch soldiers passed down 
the Thames. 

A convention parliament in February 1688-1689 adopted 
a Declaration of Bights and declared William and Mary 
King and Queen of England. The following December a 
parliament, regularly summoned by the King, enacted the 
Declaration of Rights into law as the Bill of Rights, from 
which were borrowed a number of the provisions of Amer¬ 
ican constitutions, making it necessary for students of the 
constitutional law of the United States to study that in¬ 
strument and to understand the historical events of which 
it was the outcome. 

It is immaterial to us what the quarrel was about, but 
it. is important to realize that the controversy resolved 
itself into a struggle between the King, with his preroga¬ 
tives of absolute power, and representative-parliamentary 
government, and that representative taxation and legisla¬ 
tion won. 


232 


Bill of Rights. 

(1689) 

I Will. & Mar. Sess. 2 , c. 2. 

(5 Pari. His., 483.) 

Whereas the Lords Spiritual and Temporal, and Commons, 
assembled at Westminster, lawfully, fully, and freely repre¬ 
senting all the estates of the people of this realm, did, upon 
the thirteenth day of February, in the year of our Lord one 
thousand six hundred eighty-eight, present unto their Majes¬ 
ties, then called and known by the names and style of William 
and Mary, Prince and Princess of Orange, being present in 
their proper persons, a certain declaration in writing, made by 
said Lords and Commons, in the words following, viz: 

Whereas the late King James II., by the assistance of di¬ 
verse evil counsellors, judges and ministers employed by him, 
did endeavour to subvert and extirpate the Protestant religion, 
and the laws and liberties of this kingdom: 

1. By assuming and exercising a power of dispensing with 
and suspending of laws, and the execution of laws, without 
consent of Parliament. 

2. By committing and prosecuting divers worthy prelates, 
for humbling petitioning to be excused from concurring to the 
said assumed power. 

3. By issuing and causing to be executed a commission 
under the Great Seal for erecting a court, called the Court of 
Commissioners for Ecclesiastical Causes. 

4. By levying money for and to the use of the Crown, 
by pretence of prerogative, for other time, and in other man¬ 
ner than the same was granted by Parliament. 

5. By raising and keeping a standing army within this 
kingdom in time of peace, without consent of Parliament, and 
quartering soldiers contrary to law. 

6. By causing several good subjects, being Protestants, 


233 


to be disarmed, at the same time when Papists were both 
armed and employed contrary to law. 

7. By violating the freedom of election of members to 
serve in Parliament. 

8. By prosecutions in the Court of King's Bench, for mat¬ 
ters and causes cognizable only in Parliament; and by diverse 
other arbitrary and illegal courses. 

9. And whereas of late years, partial, corrupt, and un¬ 
qualified persons have been returned and served on juries in 
trials, and particularly divers jurors in trials for high treason, 
which were not freeholders. 

10. And excessive bail hath been required of persons 
committed in criminal cases, to elude the benefit of the laws 
made for the liberty of the subjects. 

1 1. And excessive fines have been imposed; and illegal 
and cruel punishments inflicted. 

1 2. And several grants and promises made of fines and 
forfeitures before any conviction or judgment against the 
persons upon whom the same were to be levied. 

All which are utterly and directly contrary to the known 
laws and statutes, and freedom of this realm. 

And whereas the said late King James II. having abdicated 
the government, and the throne being thereby vacant, his 
Highness the Prince of Orange (whom it hath pleased Al¬ 
mighty God to make the glorious instrument of delivering this 
kingdom from popery and arbitrary power) did (by the ad¬ 
vice of the Lords Spiritual and Temporal, and diverse prin¬ 
cipal persons of the Commons) cause letters to be written to 
the Lords Spiritual and Temporal, being Protestants, and 
other letters to the several counties, cities, universities, 
boroughs, and cinque ports, for the choosing of such persons 
to represent them, as were of right to be sent to Parliament, 
to meet and sit at Westminster upon the two-and-twentieth 
day of January, in this year one thousand six hundred eighty 
and eight, in order to such an establishment, as that their re¬ 
ligion, laws and liberties might not again be in danger of being 


234 


subverted; upon which letters elections have been accordingly 
made. 

And thereupon the said Lords Spiritual and Temporal, and 
Commons, pursuant to their respective letters, and elections, 
being now assembled in a full and free representation of this 
nation, taking into their most serious consideration the best 
means for attaining the ends aforesaid, do in the first place 
(as their ancestors in like case have usually done), for the 
vindicating and asserting their ancient rights and liberties 
declare: 

1. That the pretended power of suspending of laws, or 
the execution of laws, by regal authority, without consent of 
parliament, is illegal. 

2. That the pretended power of dispensing with laws, or 
the execution of laws by regal authority, as it hath been as¬ 
sumed and exercised of late, is illegal. 

3. That the commission for erecting the late Court of 
Commissioners for Ecclesiastical Causes, and all other com¬ 
missions and courts of like nature, are illegal and pernicious. 

4. That levying money for or to the use of the Crown, 
by pretence of prerogative, without grant of parliament, for 
longer time or in other manner than the same is or shall be 
granted, is illegal. 

5. That it is the right of the subjects to petition the King, 
and all commitments and prosecutions for such petitioning, is 
illegal. 

6. That the raising or keeping a standing army within the 
kingdom in time of peace, unless it be with consent of parlia¬ 
ment, is against the law. 

7. That the subjects which are Protestant may have arms 
for their defence suitable to their conditions, and as allowed 
by law. 

8. That election of members of parliament ought to be 
free. 

9. That the freedom of speech, and debates or proceed- 


235 


ings in parliament, ought not to be impeached or questioned in 
any court or place out of parliament. 

10. That excessive bail ought not be required, nor ex¬ 
cessive fines imposed; nor cruel and unusual punishments in¬ 
flicted. 

1 1. That jurors ought to be duly impanelled and returned, 
and jurors which pass upon men in trials for high treason 
ought to be freeholders. 

12. That all grants and promises of fines and forfeitures 
of particular persons before conviction, are illegal and void. 

1 3. And that for redress of all grievances, and for the 
amending, strengthening and preserving of the laws, parlia¬ 
ment ought to be held frequently. 

And they do claim, demand, and insist upon all and singu¬ 
lar the premises, as their undoubted rights and liberties; and 
that no declarations, judgments, doings or proceedings, to the 
prejudice of the people in any of the said premises, ought 
in any wise to be drawn hereafter into consequence or ex¬ 
ample. 

To which demand of their rights they are particularly en¬ 
couraged by the declaration of his Highness the Prince of 
Orange, as being the only means for obtaining a full redress 
and remedy therein. 

Having therefore an entire confidence that his said High¬ 
ness the Prince of Orange will perfect the deliverance so far 
advanced by him, and will still preserve them from the vio¬ 
lation of their rights, which they have here asserted, and from 
all other attempts upon their religion, rights and liberties; 

11. The said Lords Spiritual and Temporal, and Com¬ 
mons, assembled at Westminster, do resolve, that William 
and Mary, Prince and Princess of Orange, be, and be de¬ 
clared, King and Queen of England, France and Ireland, and 
the dominion thereunto belonging, to hold the Crown and 
royal dignity of the said kingdoms and dominions to them the 
said Prince and Princess during their lives, and the life of the 
survivor of them; and that sole and full exercise of the regal 
power be only in, and executed by, the Prince of Orange, in 


236 


the names of the said Prince and Princess during their joint 
lives; and after their deceases, the said Crown and royal dig¬ 
nity of the said kingdoms and dominions to be to the heirs of 
the body of the said Princess; and for default of such issue to 
the Princess Anne of Denmark, and the heirs of her body; 
and for default of such issue to the heirs of the body of the 
said Prince of Orange. And the Lords Spiritual and Tem¬ 
poral, and Commons, do pray the said Prince and Princess to 
accept the same accordingly. 

III. And that the oaths hereafter mentioned be taken by 
all persons of whom the oaths of allegiance and supremacy 
might be required by law, instead of them; and that the said 
oaths of allegiance and supremacy be abrogated. 

I, A. B., do sincerely promise and swear, that I will be 
faithful and bear true allegiance to their Majesties King Wil¬ 
liam and Queen Mary. So help me God. 

I, A. B., do swear, That I do from my heart, abhor, detest 
and abjure as impious and heretical, the damnable doctrine 
and position, that Princes excommunicated by the Pope, or 
any authority of the See of Rome, may be deposed or mur¬ 
dered by their subjects, of any other whatsoever. And I do 
declare, that no foreign prince, person, prelate, state or po¬ 
tentate hath, or ought to have, any jurisdiction, power, su¬ 
periority, pre-eminence, or authority ecclesiastical or spiritual, 
within this realm. So help me God. 

IV. Upon which their said Majesties did accept the Crown 
and royal dignity of the kingdoms of England, France and Ire¬ 
land and the dominions thereunto belonging, according to the 
resolution and desire of the said Lords and Commons con¬ 
tained in the said declaration. 

V. And thereupon their Majesties were pleased, that the 
said Lords Spiritual and Temporal, and Commons, being the 
two Houses of Parliament, should continue to sit, and with 
their Majesty’s royal concurrence make effectual provision for 
the settlement of the religion, laws and liberties of this king¬ 
dom, so that the same for the future might not be in danger 


237 


again of being subverted; to which the said Lords Spiritual 
an d Temporal, and Commons did agree and proceed to act 
accordingly. 

VI. Now in pursuance of the premises, the said Lords 
Spiritual and Temporal, and Commons, in parliament as¬ 
sembled, for the ratifying, confirming and establishing the said 
declaration, and the articles, clauses, matters and things there¬ 
in contained, by the force of a law made in due form by au¬ 
thority of parliament, do pray that it may be declared and 
enacted, That all and singular the rights and liberties asserted 
and claimed in the said declaration, are the true, ancient, and 
undubitable rights and liberties of the people of this kingdom, 
and shall be so esteemed, allowed, adjudged, deemed ancT 
taken to be, and that all and every the particulars aforesaid 
shall be firmly and strictly holden and observed, as they are 
expressed in the said declaration; and all officers and ministers 
whatsoever shall serve their Majesties and their successors ac¬ 
cording to the same in all times to come. 

VII. And the said Lords Spiritual and Temporal, and 
Commons seriously considering how it hath pleased Almighty 
God, in his marvelous providence, and merciful goodness to 
this nation, to provide and preserve their said Majesties’ royal 
persons most happily to reign over us upon the throne of their 
ancestors, for which they render unto him from the bottom 
of their hearts their humblest thanks ancf praises, do truly, 
firmly, assuredly, and in the sincerity of their hearts, think, 
and do hereby recognize, acknowledge, and declare, that 
King James II. having abdicated the government, and their 
Majesties having accepted the Crown and royal dignity afore¬ 
said, their said Majesties did become, were, and of right 
ought to be, by the laws of this realm, our sovereign liege 
Lord and Lady, King and Queen of England, France and Ire¬ 
land and the dominions thereunto belonging, in and to whose 
princely persons the royal State, Crown and dignity of the 
same realms, with all honours, styles, regalities, prerogatives, 
powers, jurisdictions and authorities to the same belonging 
and appertaining, are most fully, rightfully and entirely in¬ 
vested and incorporated, united and annexed. 


238 


VIII. And for preventing all questions and divisions in 
this realm, by reason of any pretended titles to the Crown, 
and for preserving a certainty in the succession thereof, in and 
upon which the unity, peace, tranquility, and safety of this 
nation doth under God, wholly consist and depend, the said 
Lords Spiritual and Temporal, and Commons, do beseech 
their Majesties that it may be enacted, established and de¬ 
clared, that the crown and regal government of the said king¬ 
doms and dominions with all and singular the premises there¬ 
unto belonging and appertaining shall be and continue to theii 
said Majesties, and the survivor of them, during their lives, 
and the life of the survivor of them. And that the entire, 
perfect and full exercise of the regal power and government 
be only in, and executed by, his Majesty, in the names of both 
of their Majesties during their joint lives; and after their de¬ 
ceases the said Crown and premises shall be and remain to 
the heirs of the body of her Majesty; and for default of such 
issue, to her Royal Highness the Princess Anne of Denmark, 
and the heirs of her body; and for default of such issue to the 
heirs of the body of his said Majesty; and thereunto the said 
Lords Spiritual and Temporal, and Commons, do, in the name 
of all the people aforesaid, most humbly and faithfully submit 
themselves, their heirs and posterities forever, and do faith¬ 
fully promise, that they will stand to, maintain and defend 
their said Majesties, and also the limitation and succession of 
the Crown herein specified and contained, to the utmost of 
their power, with their lives and estate, against all persons 
whatsoever that shall attempt anything to the contrary. 

IX. And whereas it hath been found by experience, that 
it is inconsistent with the safety and welfare of this Protestant 
kingdom, to be governed by a Popish prince, or by any king 
or queen marrying a Papist, the said Lords Spiritual and 
Temporal, and Commons, do further pray that it may be en¬ 
acted, That all and every person and persons that is, are, or 
shall be reconciled to, or shall hold communion with the See 
or Church of Rome, or shall profess the Popish religion, or 
shall marry a Papist, shall be excluded, and be forever in- 


239 


capable to inherit, possess or enjoy the Crown and government 
of this realm, and Ireland, and the dominions thereunto be¬ 
longing, or any part of the same, or to have, use, or exercise 
any regal power, authority, or jurisdiction within the same; 
and in all and every such case or cases the people of these 
realms shall be and are hereby absolved of their allegiance; 
and the said Crown and government shall from time to time 
descend to, and be enjoyed by such person or persons being 
Protestants, as should have inherited and enjoyed the same, in 
case the said person or persons so reconciled, holding com¬ 
munion, or professing or marrying as aforesaid, were naturally 
dead. 

X. And that every King and Queen of this realm, who 
at any time hereafter shall come to and succeed in the Im¬ 
perial Crown of this kingdom, shall, on the first day of the 
meeting of the first parliament, met after his or her coming 
to the Crown, sitting in his or her throne in the House of 
Peers, in the presence of the Lords and Commons therein as¬ 
sembled, or at his or her coronation, before such person or 
persons who shall administer the coronation oath to him or 
her, at the time of his or her taking the said oath (which shall 
first happen), make, subscribe and audibly repeat the declara¬ 
tion mentioned in the statute made in the thirtieth year of the 
reign of King Charles II., entitled “An Act for the more 
effectual preserving the King’s person and government by dis¬ 
abling Papists from sitting in either House of Parliament.” 
But if it shall happen, that such King or Queen, upon his or 
her succession to the Crown of this realm, shall be under the 
age of twelve years, then every such king or queen shall make, 
subscribe and audibly repeat the said declaration at his or her 
coronation, or the first day of meeting of the first parliament 
as aforesaid, which shall first happen after such King and 
Queen shall have attained the said age of twelve years. 

XI. All which their Majesties are contented and pleased 
shall be declared, enacted, and established by authority of 
this present parliament, and shall stand, remain, and be the 
law of this realm forever; and the same are by their said 


240 


Majesties, by and with the advice and consent of the Lords 
Spiritual and Temporal, and Commons, in parliament as¬ 
sembled, and by the authority of the same, declared, enacted 
and established accordingly. 

XII. And be it further declared and enacted by the au¬ 
thority aforesaid, That from and after this present session of 
parliament, no dispensation by non obstante of or to any 
statute, or any part thereof, shall be allowed, but that the 
same shall be held void and of no effect, except a dispensation 
be allowed of, in such statute, and except in such cases as shall 
be specially provided for by one or more bill or bills to be 
passed during this present session of parliament. 

XIII. Provided that no charter, or grant, or pardon grant¬ 
ed before the three-and-twentieth day of October, in the year 
of our Lord one thousand six hundred eighty-nine, shall be 
any ways impeached or invalidated by this act, but that the 
same shall be and remain of the same force and effect in law, 
and no other, than if this act had never been made. 

(Statutes of the Realm, vi. 142-145). 

Catholics cannot read the disqualifications and restric¬ 
tions placed on those of their faith for centuries by the 
laws of England, and as far as the royal family is con¬ 
cerned continued to this day, without entertaining senti¬ 
ments of resentment ; and no lover of the right to believe 
and worship according to the dictates of one’s own con¬ 
science can review the history of these religious controver- 
cies without feelings of supreme disgust. 

Happily the Catholics of Maryland, the Puritans of 
New England, the English Church men of Virginia, and 
the Dutchmen of New York, when they came to frame and 
ratify the constitution of the United States absolutely 
divorced the church and state, and we live in a country 
of both religious and civil freedom. 


241 


To this policy of toleration we are indebted for some of 
the provisions of our American constitutions: 

“Congress shall make no law respecting an establish¬ 
ment of religion or prohibiting the free exercise thereof,” 
etc. 

The oath of the President is simply this and nothing 
more: 

“I do solemnly swear (or affirm) that I will faithfully 
execute the office of President of the United States, and 
will, to the best of my ability, preserve, protect and defend 
the Constitution of the United States.” 

The constitution of Michigan prescribes a similar oath 
with this significant addition, borrowed from New York: 

“And no other oath, declaration or test shall be required 
as a qualification for any office or public trust.” 

The ordinance for the government of the territory north¬ 
west of the River Ohio, of which Michigan was a part, 
says: 

“No person demeaning himself in a peaceable and or¬ 
derly manner shall ever be molested on account of his 
mode of worship or religious sentiments in said territory.” 

The constitution of Michigan contains this provision: 

“Every person shall be at liberty to worship God accord¬ 
ing to the dictates of his own conscience. No person shall 
be compelled to attend, or against his consent, to con¬ 
tribute to the erection or support of any place of religious 
worship, or to pay tithes, taxes or other rates for the sup¬ 
port of any minister of the gospel or teacher of religion. 


242 


No money shall be appropriated or drawn from the treas¬ 
ury for the benefit of any religious sect or society, theo¬ 
logical or religious seminary; nor shall property belonging 
to the state be appropriated for any such purpose. The 
civil and political rights, privileges and capacities of no 
person shall be diminished or enlarged on account of his 
religious belief.” 

This constitutional provision was not designed to pre¬ 
vent and does not prevent any religious denomination from 
establishing and maintaining schools, seminaries and col¬ 
leges wherein both religious and secular instruction may 
be given, and of which the University of Detroit is a con¬ 
spicuous and noble example; but it does show the absolute 
necessity of keeping religion out of the public schools and 
colleges. 

It took the people who speak the English language a 
long time to learn that the surest way of promoting the 
growth of a religious sect or denomination is to persecute 
them, imprison them, and burn them; and that a union of 
the church and state is disastrous to both, for it is certain 
that at times the state will use the church to oppress its 
enemies, and at other times the church will use the state 
as its weapon of warfare. 

As Cardinal Gibbons has expressed it: 

“A civil ruler dabbling in religion is as reprehensible 
as a clergyman dabbling in politics.” 

It must not be assumed that the religious toleration 
established in America by the Constitution of the United 
States, and subsequently accepted by the constitutions of 
the several states, was a modern invention. The early 
Christians of Rome, those who accepted the teachings of 


243 


St. Peter and St. Paul, suffered great persecution and were 
compelled to worship in the catacombs underlying the 
city; but in 313, just 1600 years ago, the Emperor Con¬ 
stantine, with the concurrence of Licinius, his colleague, 
issued an edict of religious tolerance that marks an epoch 
in the history of the world. 

Constantine^ Edict of Tolerance. 

“In a preamble to the Edict the reasons are set forth which 
led to its publication. These are: (1) the conviction which 
had grown in the minds of the Emperors that ‘each individual 
should have the right to perform his religious duties accord¬ 
ing to his own choice,’ and (2) to remedy the defect in pre¬ 
vious Edicts which imposed conditions at variance with that 
choice. Then follow the clauses which gave the Edict is pe¬ 
culiar character and great importance. ‘When we, Constan¬ 
tine and Licinius, came under favorable auspices to Milan and 
took under consideration everything which pertained to the 
common weal and prosperity, we resolved among other things, 
or rather first of all, to make such decrees as seemed in many 
respects for the benefit of every one; namely, such as should 
preserve reverence and piety towards the Diety. We resolved, 
that is, to grant both to the Christians and to all men freedom 
to follow the religion which they choose, that the Divine Power 
in Heaven may be propitious to us and to all that live under 
our government. We have, therefore, determined with sound 
and upright purpose that liberty is to be denied to no one to 
choose and to follow the religious observances of the Chris¬ 
tians, but that to each one freedom is to be given to devote 
his mind to that religion which he may think adapted to him¬ 
self, in order that the Deity may exhibit to us in all things His 
accustomed care and favor. It was fitting that we should 
write that this is our pleasure, that these conditions being en¬ 
tirely left out which were contained in our former letter con¬ 
cerning the Christians (the Edict of Galerius bore the names 


244 


of both Constantine and Licinius), everything that seemed 
very severe and foreign to our mildness may be annulled, and 
that now everyone who has the desire to observe the religion 
of the Christians may do so without molestation. Since free¬ 
dom and full liberty is granted to the Christians to observe 
their own religion, liberty is granted to others also who may 
wish to follow their own observances; it being clearly in ac¬ 
cordance with the tranquility of our times, that each one 
should have the liberty of choosing and worshiping whatever 
Deity he pleases. This has been done by us in order that we 
might not seem in any way to discriminate against any rank or 
religion.’ ” (See Article by Patrick J. Healy in Catholic Uni¬ 
versity Bulletin, January, 1913.) 

His Holiness Pius X gave directions for a suitable com¬ 
memoration in Italy of the sixteen-hundredth anniversary 
of the promulgation of the edict of toleration; and here in 
Michigan, Catholics, Protestants, Hebrews and all other 
sects and denominations can join in the rejoicing, for both 
under the Federal and the State constitution Constantine's 
edict is constitutional law in this state. 

Bibliography. “History of the English People,” by John 
Richard Green, in 4 vols., is a valuable work. An edition was 
published by Harper & Brothers in 1903. The third and 
fourth volumes embrace the period from the Restoration to the 
Accession of William and Mary and the Bill of Rights. 

“History of England from the Accession of James II,.” by 
Thomas Babington Macaulay, in 4 volumes, is the most popu¬ 
lar English history ever written. It brought its author great 
fame and a fortune. Macaulay was a Whig, and a strong 
partisan. He wrote more as an advocate than a philosopher; 
but he was a great writer. His work should be read having in 
mind the saying attributed to Lord Melbourne: “I wish I 
were as sure of any one thing as Macaulay is of everything.” 

The first two volumes appeared in 1 848, and the next two 
in 1855. A five-volume edition with a Memoir was pub¬ 
lished by D. Appleton & Co., of New York, in 1878. 

























































245 


XI. 


The Legislative. 

(Continued.) 

The legislative in the English colonies in America—The 
Virginia Company of London—The Virginia Company of 
Plymouth in England—Colony of Massachusetts Bay—Prov¬ 
ince of Carolina—Grant of New Hampshire—Charter of 
Rhode Island—Charter of Connecticut—Grant of Chas. II. 
to Duke of York—Grant of New Jersey by Duke of York— 
Forfeiture of Charter of Massachusetts Bay and grant of new 
Charter by William and Mary—Grant of Pennsylvania to 
William Penn—Grant of Delaware by William Penn—Charter 
of Georgia—The case of the Island' of Grenada—The First 
Constitution of Virginia—Sir Edwin Sandys—Compact on 
the Mayflower. 

The Revolution of 1688 and the Bill of Rights secured to 
the People of England the right to representative taxation 
and legislation and established the supremacy of the par¬ 
liament, but left the English colonies in America subject 
to the sovereign powers of the Crown. 

One of the prerogatives of the kings of England was 
the power to grant charters of incorporation. These char¬ 
ters had one merit; they were not subject to be recalled 
or revoked at the will of the King, but could only be for¬ 
feited for cause by quo warranto in the King’s Bench or 
by proceedings in the High Court of Chancery. 

The King could also govern a colony as a royal province 
through a governor appointed and commissioned by him; 
and he could also make grants to a proprietor and vest in 
him the government of the colony. 


246 


The following summary of the governments established 
by the Crown in America shows the disposition made of 
the legislative power in each colony: 

The first patent or charter for the English colonization 
of America was granted to Sir Humphrey Gilbert, his 
heirs and assigns by Queen Elizabeth in 1578. It gave 
him power to enact laws: “So always as the said statutes, 
laws and ordinances may be as neere as conveniently may 
be agreeable to the forme of the lawes, statutes, government 
or pollicie of England, and also so as they be not against 
the true Christian faith nowe professed in the Church of 
England, nor in any wise withdrawe any of the subjects 
or people of those lands or places from the allegiance of 
us our heirs or successors as their immediate sovereigns 
under God.” 

No permanent settlement was made under this patent. 

The next charter was granted to Sir Walter Raleigh by 
Queen Elizabeth in 1584. There were five voyages under 
it but no permanent settlement resulted. The above limi¬ 
tation on the powers of government granted Raleigh, was 
inserted word for word in his charter. 

The next charter was granted by James I. in 1606, and 
is known as the first charter of Virginia. It provided for 
two colonies, the first commonly called the Virginia Com¬ 
pany of London, and the second the Virginia Company of 
Plymouth in England. Each colony was to be managed 
by a council resident in England, but “according to such 
laws, ordinances, and instructions as shall be in that be¬ 
half given and signed with our hand or sign manual, and 
pass under the privy seal of our realm of England.” 

The second charter of Virginia granted by James I. in 


247 


1609, conferred authority on the council of the first or 
London Company to establish “orders, ordinances, consti¬ 
tutions, directions and instructions:” “so always as the 
said statutes, ordinances and proceedings as conveni¬ 
ently may be, be agreeable to the laws, statutes, govern¬ 
ment and policy of this our realm of England.” 

This limitation is repeated in the third Virginia charter 
of 1612. 

In 1620 the Virginia company of Plymouth received a 
new charter for the colonization of New England in Amer¬ 
ica. The management of the company was confided to a 
council of forty persons, established at Plymouth in Eng¬ 
land, with power to make orders, laws, directions, instruc¬ 
tions, forms and ceremonies of government and magistracy, 
“so always as the same be not contrary to the laws and 
statutes of this our realm of England.” 

The Plymouth Company in 1821 granted the province 
of [Maine to Sir Ferdinando Gorges and Capt. John 
Mason, who agreed that they would establish such govern¬ 
ment “as shall be agreeable, as neare as may be to the 
laws and customs of the realm of England.” This grant 
was confirmed by Charles I. in 1639. 

The Plymouth Company in 1629 granted a subcharter 
to William Bradford and his associates for the colony of 
New Plymouth. Bradford and his heirs, assigns and asso¬ 
ciates or people there inhabiting were given liberty from 
time to time “to frame and make orders, ordinances and 
constitutions,” “provided that the said lawes and orders 
be not repugn ante to the lawes of England, or the forme 
of government by the said presedente and council (of the 
Plymouth company) hereafter to be established.” 


Charles I. in 1629, (with the consent of the Plymouth 


248 


Company expressed by deed), granted to Sir Henry Rose- 
well and others and their associates and successors, a 
charter for the colony of Massachusetts Bay. The govern¬ 
ment was vested in a governor and eighteen assistants, 
and in four general asemblies of the company in each year, 
with power to make laws and ordinances “as to them from 
tyme to tyme shall be thought meete, so as such lawes and 
ordinances be not contrarie or repugnant to the laws and 
statutes of this our realm of England.” 

A patent granted by Charles I. in 1629 to Sir Robert 
Heath for the province of Carolina, conferred authority 
on Sir Robert, his heirs and assigns, with the counsel, 
consent and approbation of the freeholders of the province 
or of the major part of them, to make laws, “Yet so that 
the aforesaid lawes and ordinances be consonant to reason, 
and not repugnant or contrary, but (as conveniently as 
may be done) consonant to the lawes, statutes, customs 
and rights of our realm of England.” 

Another documentary event in 1629 was the grant of 
New Hampshire by the Plymouth Company to Capt. John 
Mason. He agreed for himself, his heirs and assigns that 
he would establish such government therein “as shall be 
agreeable as near as may be to ye laws and customs of ye 
realm of England.” 

The charter of Maryland, granted to Lord Baltimore 
in 1632, conferred power to make laws, “so nevertheless 
that the laws aforesaid be consonant to reason and be not 
repugnant or contrary, but (so far as conveniently may 
be) agreeable to the laws, statutes, customs and rights of 
this our kingdom of England.” 

A royal commission in England in 1643 made a grant 
to the inhabitants of Providence Plantations in the Nar- 


249 


ragansett Bay in New England, authorizing them “to make 
and ordain civil laws and constitutions, and inflict such 
punishment upon transgressors and for execution thereof, 
so to place and displace officers of justice, as they or the 
greater part of them shall by free consent agree unto; 
provided nevertheless that the said laws, constitutions and 
punishments for the civil government of said plantations, 
be conformable to the laws of England so far as the nature 
and constitution of the place will admit.” 

The same limitation is found in the charter granted in 
1663 by Charles II. to Rhode Island and Providence Plan¬ 
tations, which charter was the constitution of the state 
of Rhode Island until 1842. 

Connecticut did not get a charter until 1662, wdien the 
colonies of Hartford and New Haven were united and 
given power “to make, ordain and establish all manner 
of wholesome and reasonable laws, statutes, ordinances, 
directions and constitutions not contrary to the laws of 
this realm of England.” 

The patent granted to Sir Robert Heath for the prov¬ 
ince of Carolina was declared void in 1663 because the 
purpose for which it had been granted had never been 
fulfilled. 

Thereupon a charter was granted to Lord Clarendon 
and others, who were authorized with the consent of the 
freemen of the province to make laws: “Provided never¬ 
theless that the said laws he consonant to reason and as 
near as may be conveniently, agreeable to the laws, and 
customs of this our kingdom of England.” 

The Duke of York equipped an armed expedition and 
took possession of the Dutch colony of New Amsterdam in 


250 


1664. Charles II. then granted to the Duke the territory 
known as the province of Maine, and the territory between 
the Connecticut river and Delaware Bay, (New York and 
New Jersey), and gave him, his heirs, deputys, agents, 
commissioners and assigns, authority to establish lawes, 
ordinances, directions and instruments, “so always as the 
said statutes, ordinances and proceedings be not contrary 
to but as neare as conveniently may be agreeable to the 
lawes, statutes and government of this our realm of Eng¬ 
land, and saving and reserving to us our heirs and suc¬ 
cessors ye receiving hearing and determining of the appeal 
and appeals of all or any person, or persons, of, in, or 
belonging to ye territories or islands aforesaid in or touch¬ 
ing any judgment or sentence to be there made or given.” 

In 1673 a Dutch fleet recaptured New York and held it 
until it was restored to England by treaty in 1674, when 
the grant to the Duke of York was renewed. 

The Duke of York in 1664 granted New Jersey to Lord 
Berkeley and Sir George Cartaret as lords proprietors, and 
they made a concession and agreement to and wivh all and 
every the adventurers and all such as should settle or plant 
there. This instrument is more like a constitution than 
any colonial grant theretofore made. The government was 
vested in a governor, a council, and a body of representa¬ 
tives, all of which were to constitute the general assembly 
with power to make lawes “consonant to reason and as 
near as may be conveniently, to the laws and customs of 
his majesty’s kingdom of England.” 

“And by act as aforesaid to lay equal taxes and assess¬ 
ments, equally to raise moneys or goods upon all lands 
(excepting the lands of us Lords Proprietors before set¬ 
tling) or persons within the several precincts, hundreds, 
parishes, manors,” etc. 


251 


The power of taxation was also limited by the following 
significant provision: 

“They are not to impose, or suffer to be imposed any 
tax, custom, subsidy, tallage, assessment or any other duty 
whatsoever upon any colour or pretense upon the said 
Province and inhabitants other than what shall be imposed 
by the authority and consent of the general assembly and 
then only in manner aforesaid.” 

In 1665 the Lords Proprietors of the province of Caro¬ 
lina executed an instrument of “concessions and agree¬ 
ments” with the adventurers and all that should plant 
there, containing the same provisions in regard to tax¬ 
ation as those in the New Jersey grant of the Duke of 
York. 

The Carolina charter of 1663, was somewhat enlarged 
and confirmed by a charter granted by Charles II. in 
1665. 

The famous charter of the Province of Pennsylvania 
granted to William Penn in 1681 authorized him, his heirs 
and his or their deputies and lieutenants with the consent 
of the freemen of the country or of their delegates and 
deputies, to ordain, make and enact laws: “Provided 
nevertheless that the said laws bee consonant to reason 
and bee not repugnant or contrarie, but as neare as con¬ 
veniently may bee agreeable to the laws and statutes and 
rights of this our Kingdome of England; and saving and 
reserving to us our heirs and successors the receiving 
heareing and determining of the appeale and appeales of 
all or any person or persons, of, in, or belonging to the 
territories aforesaid, or touching any judgment to be there 
made or given.” 


252 


“Our further will and pleasure is that a transcript or 
duplicate of all lawes, which shall be soe as aforesaid 
made, and published within the said Province shall within 
five years after the making thereof be transmitted and de¬ 
livered to the Privy Council, for the time being, of us, our 
heirs and successors: And if any of the said lawes within 
the space of six months after that they shall be soe trans¬ 
mitted and delivered, bee declared by us, our heires or 
successors, in our or their Privy Councell, inconsistent 
with the sovereignty or lawful prerogative of us, our heirs 
or successors, or contrary to the faith and allegiance due 
to the legal government of this realme from the said Wil¬ 
liam Penn or his heirs or of the planters and inhabitants 
of the said province, and that thereupon any of the said 
lawes shall be adjudged and declared to be void by us our 
heires or successors, under our or their privy seale, that 
then and from thence forth, such lawes concerning which 
such judgment and declaration shall be made shall become 
void: otherwise the said lawes so transmitted shall re- 
maine and stand in full force according to the true intent 
and meaning thereof.” 

The charter of Massachusetts Bay was forfeited by the 
high court of chancery of England in 1684. William and 
Mary in 1691 granted a new charter consolidating the Bay 
and Plymouth colonies, and Maine and Nova Scotia, under 
the name of the province of Massachusetts Bay. The gov¬ 
ernment was vested in a governor and council, and the 
representatives of the freeholders and inhabitants, as¬ 
sembled as a general court or assembly with power to 
make, ordain and establish all manner of wholesome and 
reasonable orders, laws, statutes and ordinances “so as 
the same be not repugnant or contrary to the laws of this 
our realm of England.” 


All laws, statutes and ordinances were required to be 


253 


transmitted to England, and if within three years they 
were disallowed and rejected by the Privy Council they 
were to become utterly void and of no effect. 

Delaware was a part of the territory granted to William 
Penn, and in 1701 he granted a charter for the separate 
government of the counties subsequently known as Dela¬ 
ware. An assembly consisting of four representatives 
from each county was authorized to pass laws, and to 
“have all other powers and privileges of an assembly ac¬ 
cording to the rights of free born subjects of England 
and as is usual in any of the King’s plantations in 
America.” 

Georgia was a part of Carolina, but in 1732 George 
II. chartered a corporation to be known as the “Trustees 
for establishing the colony of Georgia in America.” 
Power was given to form and prepare laws, statutes and 
ordinances lit and necessary for and concerning the gov¬ 
ernment of the said colony, and not repugnant to the 
laws and statutes of England, the same to be presented to 
the Privy Council for approbation or disallowance, and 
if approved from thence forth to be in full force and 
effect. 

The thirteen English colonies in America had three dif¬ 
ferent kinds of government: charter, proprietary, and pro¬ 
vincial. 

The charter of Virginia was cancelled in 1621, and 
thereafter it was a royal province. 

New Jersey and the Carolinas once proprietary became 
provincial before the revolution. By that time there were 
only three charter governments left: Massachusetts, 
Rhode Island and Connecticut. The proprietary govern¬ 
ments were Maryland, Pennsylvania and Delaware. 


254 


The royal or provincial colonies were New Hampshire, 
New York, New Jersey, Virginia, North and South Caro¬ 
lina, and Georgia, 

The charter governments were democratic, as the colon¬ 
ists selected their governor, council and assembly, except 
that in Massachusetts the governor was appointed by the 
King. 

The proprietary governments were feudal principalities, 
almost palatinates, or subkingdoms of the kingdom of 
England, as the proprietary exercised the powers of the 
king in appointing the governor, in calling together 
the legislature and in approving or disapproving the laws 
enacted. 

In the provincial governments there was a delegation 
by royal commission of the authority of the king to a 
governor as the king’s deputy, with a council to assist 
the governor appointed in the same way. 

The council acted as a senate or upper house, in the en¬ 
actment of the laws. The governor had the veto power, 
and prorogued and dissolved the legislature. 

These royal commissions provided that the laws enacted 
should be agreeable to the laws and statutes of England 
and that they should be transmitted to England for ap¬ 
proval by the Privy Council. 

These colonial charters, grants and commissions were 
constitutions of government. 

In the case of the Island of Grenada decided in 1774 it 
was held by the King’s Bench in an unanimous opinion by 
Chief Justice Mansfield that if the crown by a commission 
to the governor of a province conferred legislative power 


255 


on assemblies to be called by the governor, the commission 
became the constitution of the province; it was irrevocable 
by the crown, and precluded the King from resuming his 
legislative authority over the province. (Campbell vs. 
Hall, Cowp. 204.) The suit was an action against a col¬ 
lector of customs to recover money paid as a duty on ex¬ 
ports. The King had imposed a duty on exports from the 
island without the consent of the legislative assembly of 
the colony or of the British parliament. 

It was fortunate for America that these English colon¬ 
ies were planted under royal charters, commissions and 
proprietary grants, as it enabled them to enjoy a reason¬ 
able measure of self government and to build up represen¬ 
tative assemblies for the exercise of the power of taxation 
and legislation. 

The colonies were subject to two kinds of legislative 
action by the home government, prerogative legislation by 
the king in council, and parliamentary legislation by par¬ 
liament, that is, by the king in parliament. Prerogative 
legislation was subject to the qualification that the king 
could not revoke a charter by an order in council, and a 
eommision granting legislative authority to a colony was 
irrevocable. On the other hand an act of parliament 
could be amended or repealed. This was the inevitable 
result of the doctrine of parliamentary sovereignty which 
was so completely established by the Revolution of 1688. 

Before that event there was very little if any interfer¬ 
ence by parliament with the colonies, and it was long 
afterwards before any burdensome or obnoxious acts were 
passed. 

The acts of navigation and trade of the reign of Charles 
II. prohibiting imports or exports into or from England, 


256 


Ireland, or into or from the colonies except in British 
ships manned by English sailors, although not strictly 
enforced in America, retarded the progress of the colonies; 
but it was not until the reign of George III., which be¬ 
gan in 1760, that the King in parliament presumed to 
exercise full legislative authority over the colonies in all 
cases whatsoever; and it was discovered that the easy way 
to annul a colonial charter was to pass, without notice 
to the colony, without an allegation, without a hearing, 
and without evidence, an act of parliament for the govern¬ 
ment of the colony. 

For nearly one hundred and fifty years the colonies 
enjoyed the benefits of colonial self government by their 
own legislative assemblies. It began under the very first 
charter granted, that of the double barrelled Virginia com¬ 
pany. It is an interesting fact, that the movement which 
resulted in parliamentary sovereignty began in the Vir¬ 
ginia company of London. 

The council in England of that company became divided 
into two factions. In the king’s party were the Earl of 
Warwick, Alderman Sir Robert Johnson and Sir Thomas 
Smith. The latter was the first treasurer and head of the 
company, and a favorite of the King. In the opposition, 
or people’s party, were Sir Edwin Sandys, the Earl of 
Devonshire, Sir Edwin Sackville, the Earl of Southamp¬ 
ton the patron of Shakespeare, and other men of note and 
influence. 

The administration of Sir Samuel Argali as governor 
of Virginia having proved very unsatisfactory, and pro¬ 
ducing great discontent in the company. Sir Thomas Smith 
tendered his resignation as treasurer. Much to his chagrin 
it was accepted and Sir Edwin Sandys was elected to take 
his place. He proved a very efficient officer and the com- 


257 


pany desired to re-elect him, but the King protested 
against it, and after conferences with the King the matter 
was compromised by the election of the Earl of South¬ 
ampton. 

During the ascendency of Sandys and his faction in the 
company, two grants were made by it, which planted the 
seeds of representative government in America and from 
w T hich the most momentous consequences flowed. 

The company appointed Sir George Yeardley Governor 
of Virginia with authority to call colonial assembles, and 
July 30, 1619, the first legislative assembly to be held in 
America met in the little church in Jamestown. 

About the same time, June 9-19, 1619, the company 
granted a patent to the Pilgrims at Leyden, under which 
they sailed for America in the Mayflower. 

Sir Edwin Sandys was a son of Edwin Sandys, Arch¬ 
bishop of Canterbury. William Brewster, one of the great 
Pilgrim fathers, became acquainted with the family at 
Scrooby, where he held the Manor House from Sir Samuel 
Sandys, a brother of Sir Edwin. Brewster was postmaster 
of Scrooby from 1589 to 1607 and was one of the church 
there of which John Kobinson was pastor. 

After the members of this church were joined in com¬ 
munion in 1606 they ordinarily met at the Manor House 
on the Lord's day, and were entertained by Brewster until 
he and they fled to Holland. 

When the Pilgrims in 1617 sought authority to settle in 
America they found a great friend in Sir Edwin Sandys 
and through his efforts obtained a patent from the Vir¬ 
ginia company, of London. As they landed on the inhos¬ 
pital shores of Cape Cod two hundred miles north of the 
north line of Virginia, the patent was no use to them, and 


258 


it was lost and no copy of it is in existence. We can form 
a very good opinion of its contents by examining the in¬ 
strument granted by the company two years later estab¬ 
lishing a government in Virginia. 

In 1621 Sir Francis Wyatt was appointed governor and 
brought with him to Virginia a written constitution which 
put in definite form the right to convene assemblies. 

First Constitution of Virginia. 

An Ordinance and constitution of the Treasurer, Council, 
and Company in England for a council of State and General 
Assembly. Dated July 24, 1621. 

1. To all People, to whom these presents shall come, be 
seen, or heard, The Treasurer, Council, and Company and 
adventurers and planters for the city of London for the first 
Colony of Virginia, Send Greeting. Know ye, that we, the 
said Treasurer, Council and Company, taking into careful con¬ 
sideration the present state of the said colony of Virginia, and 
intending by the Divine Assistance to settle such a form of 
government there as may be to the greatest benefit and com¬ 
fort of the people and whereby all injustice, grievances and 
oppression may be prevented and kept off as much as possible 
from the said colony, have thought fit to make our entrance, 
by ordering and establishing such supreme council, as may not 
only be assisting to the Governor for the time being in the ad¬ 
ministration of justice, and the executing of other duties, to the 
office belonging, but also, by their vigilant care and prudence 
may provide, as well for a remedy of all inconveniences, grow¬ 
ing from time to time as also for advancing of increase 
strength, stability and prosperity of the said colony. 

2. We therefore, the said treasurer, council, and company, 
by authority directed to us from his Majesty under the great 
seal, upon mature deliberation do hereby order and declare, 
that, from, hence forward, that, there shall be two supreme 
councils of Virginia, for the better government of the said 
colony aforesaid. 


259 


3. The one of which councils to be called The Council of 
State (and whose office shall briefly be assisting with their 
care, advice, and circumspection to the said governor), shall 
be chosen, nominated, placed and displaced, from time to 
time, by us, the said treasurer, council, and company and our 
successors. Which council of state shall consist for the present 
only of these persons as are here inserted, viz., Sir Francis 
Wyatt, Governor of Virginia; Captain Francis West, Sir 
George Yeardley, Knight; Sir William Neuce, knight marshal 
of Virginia; Sir George Sandys, treasurer; Mr. George Thorpe, 
deputy of the college; Captain Thomas Neuce, deputy for the 
company; Mr. Powlet, Mr. Leech, Captain Nathaniel Powel, 
Mr. Christopher Davison, secretary; Doctor Potts, physician to 
the Company; Mr. Roger Smith, Mr. John Berkeley, Mr. John 
Rolfe, Mr. Ralph Harner, Mr. John Pounds, Mr. Michael 
Lapworth, Mr. Harwood, Mr. Samuel Marcock, which said 
counsellors and council, we earnestly pray and desire, and in 
his Majesty’s name strictly charge and command, that (all 
factions, partialities sinister, be laid aside) they bend their care 
and endeavours to assist the honour and service of God, and 
the enlargement of his kingdom, amongst the heathen people; 
and next in erecting of the said colony in due obedience to 
his Majesty and all lawful authority from his Majesty’s direc¬ 
tions; and lastly, in maintaining the said people; and in jus¬ 
tice and Christian conversation amongst themselves, and in 
strength and ability to withstand their enemies. And this 
council, to be always, or for the most part, residing about or 
near the governor. 

4. The other council more generally to be called by the 
governor, once yearly, and no oftener, but for very extraor¬ 
dinary and important occasions, shall consist for the present of 
the said council of state, and of two burgesses out of every 
town, hundred, or other particular plantation, to be respec¬ 
tively chosen by the inhabitants, which Council shall be called 
The General Assembly, wherein (as also in the said council 
of state) all matters shall be decided, determined, and or¬ 
dered, by the greater part of the voices then present, reserving 
to the governor always a negative/ voice; and this general as- 


260 


sembly shall have free power to treat, consulte, and conclude, 
as well of all emergent occasions concerning the public weal 
of the said company and every part thereof, as shall from 
time to time appear necessary or requisite. 

5. Whereas in all other things, we require the said general 
assembly, as also the said council of state, to imitate and fol¬ 
low the policy of a form of government, laws, customs, and 
manner of trial, and other administration of justice used in 
the realm of England as near as may be, even as ourselves, by 
his Majesty’s letters patent, are required. 

6. Provided, that no law or ordinance, made in the said 
general assembly, shall be or continue in force or validity un¬ 
less the same shall be solemnly ratified and confirmed in a 
general quarter court of the said company, here in England 
and so ratified, be returned to them under our seal; it being 
our intent to afford the like measure also into the said colony, 
and after the government of the said colony shall once have 
been well framed, and settled accordingly, which is to be done 
shall have been so by us declared, no orders of court after¬ 
ward shall bind the said colony, unless they be ratified in like 
manner in the general assemblies. In witness whereof we have 
hereunto set our common seal the 24th of July, 1621, and in 
the reign of our Sovereign Lord James, King of England, etc. 

This constitution was not the act of the settlers in Vir¬ 
ginia, but it was very acceptable to them. It was framed 
and issued by the Virginia Company of London when that 
company was antagonistic to the King and was not under 
the royal influence. 

We can form our best estimate of the resolute character 
of Sir Edwin Sandys from a speech he made in the House 
of Commons in 1614 which was remarkable for his day and 
generation. 

He maintained “that the origin of every monarchy lay 
in election; that the people gave its consent to the King’s 
authority upon the express understanding that there were 


261 


certain reciprocal conditions which neither the king nor 
the people might violate with impunity, and that a king 
that pretended to rule by any other title such as conquest 
might be dethroned whenever there was sufficient force to 
overthrow him.” (1 Commons Jour., 493.) 

We get another glimpse of Sir Edwin Sandys from the 
King’s outspoken opposition to him when the Virginia 
company wanted to re-elect him as treasurer. In answer 
to appeals from Southampton and others King James de¬ 
clared that “the Virginia Company was a seminary for a 
seditious parliament;” that Sandys was his “greatest 
enemy” and that “he could hardly think well of whomso¬ 
ever was his friend,” and in a furious passion he closed by 
saying “choose the devil if you will but not Sir Edwin 
Sandys.” ( Neill’s His. Virg. Co., of London, 185.) 

The constitutional significance of the controversy in the 
Virginia Company of London over the government of the 
colony comes from the fact that the patriot or parliamen¬ 
tary party in England made its first stand against the 
court party in that company. 

The King pursued the company relentlessly, and he was 
aided by the minority of the adventurers or stockholders. 
The company was brought before the Privy Council with 
the view of obtaining a voluntary surrender of its charter, 
but as the majority were opposed to the doctrine of the 
Stuarts that the King governed by divine right all at¬ 
tempts to secure a surrender failed. Commissioners were 
sent to Virginia to investigate, and to obtain evidence 
against the company, and as a last resort the King in¬ 
structed the Attorney General to sue out a writ of quo 
warranto in the King’s Bench against the company to for¬ 
feit its charter. The company sought to obtain protection 
from parliament, but before anything was done the King 
sent a message to the House informing it that the admin- 


262 


istration of Virginian affairs had been specially entrusted 
to the Privy Council and forbidding any interference. The 
popular party was not yet strong enough to prevent the 
House from reluctantly acquiescing. 

The quo warranto case came on to be heard in the 
King’s Bench. “The Attorney General attacked the patent 
on the ground that it granted the privilege of ‘transporting 
the King’s subjects to Virginia, a privilege which, if con¬ 
tinuously exercised, might in time depopulate the realm 
and transfer the whole English nation to the dominion of 
the company.’ ” 

But it matters not whether the plea was good or bad. 
The patriotic spirit of resistance which had sliowm itself 
so fully in the company, and which w r as gradually awaken¬ 
ing in Parliament had no place in the law courts, and on 
the 24th of July, 1624, judgment was pronounced declaring 
the patent null and void. ( Doyle’s English Colonies in 
America , vol. 1, p . 180.) 

From the dissolution of the Virginia Company in 1624 
until the Revolution in 1776, Virginia was governed as a 
royal province under the direct control of the King of 
England. 

In 1623, the year the royal commissioners came to Vir¬ 
ginia, hunting for evidence to annul the charter, the Gen¬ 
eral Assembly adopted a declaration of principles the most 
important of which was that the Governor was not “to lay 
any taxes or impositions upon the colony or their lands or 
other w T ay than by the authority of the General Assembly, 
to be levied and employed as said Assembly shall appoint.” 

The Virginia colonists never receded from this principle, 
and thus we see that Sir Edwin Sandys and his friends in 
the London Company planted representative taxation on 
American soil. 


263 


We cannot pay too much honor to the memory of Sir 
Edwin Sandys. He is in the same class as Archbishop 
Langton, and Simon de Monfort, 

The Pilgrims from Leyden realizing that their patent 
from the London Company was of no validity outside the 
territory of that company, proceeded before they disem¬ 
barked from the Mayflower to organize a government of 
their own. 

They signed their famous compact organizing them¬ 
selves into a body corporate and politic. The forty-one 
persons, composing the company who signed, together with 
the women, children and servants made the total number 
of persons who landed on Plymouth Kock one hundred 
and two. 

Agreement Between the Settlers at New Plymouth. 

In the name of God, Amen. 

We, whose names are underwritten, the loyal subjects of 
our dread sovereign Lord, King James, by the grace of God, 
of Great Britain, France, and Ireland, King, Defender of the 
Faith, etc., having undertaken for the glory of God, and ad¬ 
vancement of the Christian faith, and the honour of our King 
and Country, a voyage to plant the first Colony in the northern 
parts of Virginia; do by these Presents solemnly and mutually 
in the presence of God and one another, covenant and com¬ 
bine ourselves together into a civil body, politik, for our better 
ordering and preservation, and furtherance of the ends afore¬ 
said: And by virtue hereof to enact, constitute, and frame, 
such just and equal laws, ordinances, acts, constitutions, and 
officers, from time to time, as shall be thought most meet and 
convenient for the general good of the colony; unto which we 
promise all due submission and obedience. In witness whereof 
we have hereunto subscribed our names at Cape Cod the 
eleventh of November, in the reign of our sovereign Lord 
King James, of England, France and Ireland, the eighteenth, 
and of Scotland, the fifty-fourth, Anno. Dom. 1620. 


264 


John Carver, 
William Bradford, 
Edwin Winslow, 
William Brewster, 
Isaac Alterton, 
Miles Standish, 
John Goodman, 
Edward Tilly, 

John Tilly, 

Francis Cooke, 
Thomas Rogers, 
Thomas Tinker, 
John Alden, 
Samuel Fuller, 
Christopher Martin, 
William Mullins, 
William White, 
Richard Warren, 
John Howland, 
Stephen Hopkins, 
John Turner, 


Francis Eaton, 
James Chilton, 

John Craxton, 

John Billington, 
Joses Fletcher, 

John Ringdale, 
Edward Fuller, 
Digery Priest, 
Thomas Williams, 
Gilbert Winslow, 
Edmond Margeson, 
Peter Brown, 
Richard Bitteridge, 
George Soule, 
Richard Clark, 
Richard Gardiner, 
John Allerton, 
Thomas English, 
Edward Doten, 
Edward Liester. 


While this instrument recognized James I. as King of 
England it contained no reservation of conformity with 
the laws of England, hut that was implied. They simply 
hound each other to submit to such laws and ordinances as 
the community, in general meetings, should from time to 
time enact. It was not much of a constitution when com¬ 
pared with 1 the elaborate instruments in force in the 
United States at the present time, but it was sufficient to 
meet the necessities of the occasion, and it had the merit 
of establishing a government of the people by the people. 

True to their Teutonic instincts and traditions, they re¬ 
produced in America the “mark” of the ancient Germans 
and the “village township” of the Anglo-Saxons in their 
settlements in England. 


265 


The first earlderman, gerefa, or civil officer at the head 
of the Plymouth Colony was John Carver, the Governor, 
and its first heratoga or military leader was Capt. Miles 
Standish. Their spiritual welfare was in charge of Wil¬ 
liam Brewster as the ruling elder of their church. Their 
pastor, John Robinson, intended to but never did come 
over. 

These Pilgrims, w r ith the exception of Elder Brewster, 
who had been a student at Cambridge, were simple rustics, 
farmers or workmen. They were separatists from the 
Church of England, and were poor and friendless, and 
exiles for opinion’s sake from their native country. 

The Fundamental Orders adopted by the pioneers who 
left the colony of Massachusetts Bay and settled at Hart¬ 
ford and vicinity on the Connecticut river is a much more 
elaborate instrument than the compact on the Mayflower, 
but it established a representative democracy in its most 
simple form. 

The Fundamental Agreement of those who settled at 
New Haven is of the same nature. 

You will find these instruments in Vol. 1, American 
Charters and Constitutions, and Organic Laws, published 
by the Government. 

They should be studied, regardless of their religious 
features, as interesting phenomena showing the capacity of 
the first settlers on this continent from England, Scotland 
and Ireland, to form their own schemes of government, 
and to govern themselves. 

Roger Williams and other immigrants who were driven 
out of Massachusetts, settled in Rhode Island in 1636, and 
in 1640 they entered into a Plantation Agreement for the 
town of Providence and established “a pure democracy, 
which for the first time guarded jealously the rights of 


266 


conscience by ignoring any power in the body politic to 
interfere with those matters that alone concern man and 
his maker.” 

The Plantation Agreement says: 

“Wee agree as formerly hath bin the liberties of the 
town, so still, to honld forth liberty of conscience.” Vol. 
6 Am. Charters, Constitutions and Organic Laws. 

In order to appreciate the distinguished services of 
Roger Williams in behalf of liberty of conscience it is only 
necessary to read the sketch of his life in Appleton’s Cyclo¬ 
pedia of American Biography. 

He was a gentle and mild mannered man, but pugua- 
cious in controversy. 

Bibliography. “English Colonies in America” in 3 vols., 
and 2 additional vols., entitled “The Middle Colonies,” and 
“The Colonies under the House of Hanover,” by Jon. A. 
Doyle of Oxford University, are a comprehensive history of 
the English in America, including the conquest of Canada, and 
are very valuable as books of reference. 

“The Story of the Pilgrim Fathers, 1603-1623 A. D.; as 
told by Themselves, their Friends, and their Enemies,” by 
Edward Arber, is valuable for the information and documents 
it contains, showing the negotiations of the Pilgrims with the 
Virginia Company of London, with the Privy Council, with the 
Dutch, and with the Adventurers from 1617 to 1620 in their 
efforts to secure a patent or grant with which to migrate to 
America. 

“A Short History of the English Colonies in America,” by 
John Cabot Lodge, now a United States Senator from Massa¬ 
chusetts, is the best work for a student at law who desires to 
make himself familiar with the foundations of the United 
States. 






















































































































































































































267 


XII. 

The Legislative. 

(Continued). 

The legislative power cannot be delegated—Acts of 31 
Henry VIII, authorizing the King to legislate by proclamation 
—Opinion of the judges that the proclamations of the King 
are not law—Ordinance for the government of the territory 
northwest of the river Ohio—Provisional executive govern¬ 
ments with legislative power in the Territories of the United 
States—The steady progress of representative government 
from the Atlantic to the Pacific and to the insular possessions 
of the United States. 

The division of our American governments into three 
co-ordinate branches, necessarily prevents either of these 
departments from delegating its authority to the other 
two or to either of them, but there are other reasons why 
the legislative power cannot be delegated. 

Representative government vests in the persons chosen 
to exercise the power of voting taxes and enacting laws, 
the most important and sacred trust known to civil gov¬ 
ernment. The representatives of the people are required 
to exercise wise discretion and a sound judgment, having 
due regard for the purposes and needs of the executive 
and judicial departments, the ability of the tax payers to 
respond, and the general public welfare. It follows as a 
self evident proposition that a representative legislative 
assembly must exercise its own judgment; that in giving 
its consent to a tax levy it must distinctly and affirma¬ 
tively determine the amount of the tax, by fixing a 


268 


definite and certain rate, or by fixing an aggregate 
amount, to be spread against the tax payers on some basis 
of apportionment ; and that in enacting a law, it must 
so far express itself, that the act when it leaves the legis¬ 
lative department is a complete law. 

It is, therefore, an axiom of constitutional law, that a 
representative-legislative body cannot delegate its power. 

“The power to whose judgment, wisdom and patriotism this 
high prerogative has been intrusted cannot relieve itself of the 
responsibility, by choosing other agencies upon which the 
power shall be devolved, nor can it substitute the judgment, 
wisdom and patriotism of any other body for those to which 
alone the people have seen fit to confide this sovereign trust.” 
(Cooley s Const. Lim. 7th ed. 163.) 

If it was competent for a representative-legislative 
body to delegate its power it would be apt to make the 
delegation to the executive, which would be destructive 
of representative government and a return to despotism. 
Not only the nature of the legislative power but the very 
existence of representative government depends upon the 
doctrine that the power of a representative assembly to 
levy taxes and make laws cannot be abdicated or in any 
way transferred to any other body or authority. 

Like all the great principles of constitutional law it 
was only gradually developed, and full and complete 
recognition of its binding force and effect is not yet at¬ 
tained. 

John Locke, the philosopher, was born in 1632 and lived 
until 1704, covering the most eventful period in the con¬ 
stitutional history of England. He wrote his “Two 
Treatises on Government,” during the revolution of 1688, 


269 


and expressed himself on the question of delegating legis¬ 
lative power as follows: 

d he legislative cannot transfer the power of making laws 
to any other hands: for it being but a delegated power from 
the people they who have it cannot pass it over to others. The 
people alone can appoint the form of the commonwealth, 
which is by constituting the legislative and appointing in whose 
hands that shall be. And when the people have said we will 
submit to rules and be governed by laws made by such men 
and in such forms, nobody else can say other men shall make 
laws for them; nor can the people be bound by any laws but 
such as are enacted by those whom they have chosen, and 
authorized to make laws for them. The power of the legisla¬ 
tive being derived from the people by a positive voluntary 
grant and institution, can be no other than what that positive 
grant conveyed, which being only to make laws, and not to 
make legislators, the legislative can have no power to transfer 
their authority of making laws and place it in other hands.” 

The most conspicuous example in English history of 
a violation of this principle of constitutional law is the 
Act- of Parliament of the reign of Henry VIII giving the 
proclamations of the King the same force and effect as 
if they had been made by Parliament, 

31 HENRY VIII, C. 8. 

‘‘The King for the time being, with the advice of his council 
or the more part of them, may set forth proclamations under 
such penalties and pains as to him and them shall seem neces¬ 
sary which shall be observed as though they were made by act 
of parliament; but this shall not be prejudicial to any person’s 
inheritance, offices, liberties, goods, chattels or life; and who¬ 
soever shall willingly offend any article contained in said proc¬ 
lamations shall be such forfeitures or be so long imprisoned as 
shall be expressed in said proclamations; and if any offending 
will depart the realm, to the intent he will not answer his said 
offence, he shall be adjudged a traitor.” 


270 


To enforce this act it was further enacted, 34 Henry 
VIII C. 13, that judgment might be given any offenders 
of it by nine of the King’s Council. 

On the death of Henry VIII his son, Edward VI, suc¬ 
ceeded to the throne when he was only ten years of age. 
Edward Seymour, Earl of Hertford, the eldest brother of 
the King’s mother, was chosen Protector by the Council 
of the Regency, and created Duke of Somerset. He was 
opposed to arbitrary government and during the first 
year of the reign secured the repeal of the two statutes 
concerning proclamations, and also of some other acts 
relating to treason felonies. (1 Edward VI. c. 12). 

In 1610 when Sir Edward Coke was Chief Justice of 
the Court of King’s Bench he was sent for to attend the 
Privy Council to give his opinion on two questions; the 
one, if the King by his proclamation may prohibit new 
buildings in and about London; and the other, if the 
King may prohibit the making of starch from wheat. The 
Lord Chancellor said he would advise the Judges to main¬ 
tain the power and prerogative of the King. Coke asked 
leave to consult his brethren of the Bench and was di¬ 
rected to consult with the chief justice of the common 
please, the chief baron of the exchequer, and Baron Alt- 
ham. The opinion of the judges is reported by Coke. (12 
Coke’s Rep. 74, 75.) 

OPINION OF THE JUDGES THAT THE PROCLAMATIONS OF THE 
KING ARE NOT LAW. 

“In the same term it was resolved by the two Chief Justices, 
Chief Baron and Baron Altham, upon conference betwixt the 
Lords of the Privy Council and them, that the King by his 
proclamation cannot create any offence which was not an 
offence before, for then he may alter the law of the land by 


271 


his proclamation in a high point; for if he may create an 
offense where none is, upon that ensures fine and imprison¬ 
ment: also the law of England is divided into three parts, com¬ 
mon law, statute law and custom; but the King’s proclamation 
is none of them: also malim aut est malum in sex aut prohabi- 
tum that which is against common law is malum in sex, malum 
prohibitum is such an offence as is prohibited by act of parlia¬ 
ment, and not by proclamation. 

“Also it was resolved, that the King hath no prerogative, 
but that which the law of the land allows him. 

“But the King for prevention of offences may by proclama¬ 
tion admonish his subjects that they keep the laws, and do not 
offend them upon punishment to be inflicted by the laws, &c. 

“Lastly, if the offence be not punishable in the Star-chamber, 
the prohibition of it by proclamation cannot make it punish¬ 
able there: and after this resolution, no proclamation imposing 
fine and imprisonment, was afterwards made, &c.“ 

The creation of subordinate local governments is usual¬ 
ly mentioned and treated by jurists and law-writers as 
a delegation of power and as an exception from the gen¬ 
eral rule on the subject, but this view is not altogether 
correct, for the power to recognize existing or to create 
new local governments is constitutionally subject to this 
very important limitation, that the power of the local 
governments to levy taxes and to make laws, must be 
vested in the people or their immediate representatives, 
and that in these local governments this essential and 
characteristic feature of representative government must 
be preserved. 

No historical document illustrates and enforces this 
principle of constitutional law more clearly than the ordi¬ 
nance for the government of the territory of the United 
States northwest of the river Ohio, which was ordained 
by Congress after the definitive treaty of peace between 


272 


the United States and Great Britain of 1783 had fixed 
the Mississippi River as the western boundary of the 
United States, and before the adoption of the federal con¬ 
stitution. 

This ordinance expressly declares that the vesting of 
the legislative power in the Governor and Judges appoint¬ 
ed by the President was only to be temporary and pro¬ 
visional; that as soon as the Territory had five thousand 
free male inhabitants, a general assembly could be or¬ 
ganized, the principal branch of which should consist of a 
House of Representatives elected by the people; that not 
less than three or more than five states should be formed 
in the Territory and that when any of them had sixty 
thousand free inhabitants, a permanent constitution and 
state government could be formed, provided they were 
republican and in conformity with the principles of the 
ordinance. 

In accord with the principles thus enunciated the con¬ 
stitution of the United States authorizes Congress to ad¬ 
mit new States into the Union, but all new states must 
be republican, for it is expressly declared that the 
United States shall guarantee to every State in the 
Union a republican form of government. The power of 
Congress to dispose of and make all needful rules and 
regulations respecting the territory and other property 
of the United States, must be read and construed in con¬ 
nection with the ordinance for the government of the 
Northwest Territory, the constitutional provisions men¬ 
tioned above and the great historical events which led 
to American independence. It is impossible to believe 
that the people of the United States intended any such 
contradiction of their chief object and aim as would per¬ 
mit the existence within the territory subject to the juris- 


273 


diction of the United States, of monarchical or oligarch¬ 
ical governments, either in whole or in part, or of any 
other kind of governments, either in whole or in part, or 
of any other kind of government than a representative 
one in form and in substance. 

It is, therefore, a paramount and supreme rule in the 
United States that no tax, or charge of any kind or na¬ 
ture, can be imposed or any law be enacted, by the na¬ 
tional, or the state or the local governments, except with 
the consent of the people themselves or their immediate 
representatives directly chosen by them to exercise a 
judgment on their behalf. This rule is prescribed by the 
constitution of the United States, and by the constitution 
of the several States, and is inherent in our system of 
government. 

Provisional executive governments with legislative 
powers as temporary expedients may or may not, accord¬ 
ing to the facts in each particular case, be permissible; 
but sooner or later they must give way to representative 
government, which is the only kind of government that 
can permanently exist on American soil. 

A House of Representatives was elected in the North 
West Territory in 1798, and the general assembly held 
its first session in 1799, only twelve years after the ordi¬ 
nance of 1787 was passed. The Territory was divided 
by Congress in 1800, and all the lands therein west of a 
line drawn from a point on the Ohio river opposite to the 
mouth of the Kentucky River to Port Recovery and 
thence north through the center of the lower peninsula 
of Michigan to the national boundary line was made a 
separate territory to be called Indiana, the government 
of which to be in “all respects similar” to that provided 


274 


by the ordinance of 1787, with this modification, that a 
general assembly might be organized therein before the 
territory had five thousand free male inhabitants. This 
permitted a House of Representatives to be elected and 
a general assembly created which held its first session in 
1805. 

The State of Ohio was admitted into the Union in 
1802 and the Michigan portion of the North West Terri¬ 
tory was transferred to Indiana. 

In 1805 the territory of Indiana was divided into two 
territories by the creation of the territory of Michigan 
which was given a temporary government similar to the 
ordinance of 1787. Its territorial limits were the lower 
peninsula of Michigan, and the eastern half of the Upper 
Peninsula. In 1818 Congress extended its jurisdiction 
as far west as the Mississippi river thereby including all 
of Wisconsin; and in 1834 as far west as the Missouri 
river and the White Earth river which flows into the Mis¬ 
souri from the north in what is now Ward County in 
North Dakota. The whole of the present State of Iowa 
was included. 

Under the ordinance of 1787 Michigan was entitled to 
a general assembly with an elective house of representa¬ 
tives when it had five thousand free male inhabitants. In 
1818 the people of the territory voted on the question of 
passing to what was called the second stage of govern¬ 
ment but there was a large majority against it. The in¬ 
habitants were French who knew nothing of the advan¬ 
tages of representative government, and were satisfied 
with the administration of Gen. Lewis Cass who had 
been governor of the Territory from 1813 and continued 


275 


in office until 1831 when he became Secretary of War 
in the cabinet of President Jackson. 

Congress remodeled the territorial government in 1823 
by providing for a legislative council consisting of nine 
persons selected by the President and confirmed by the 
Senate from eighteen persons elected by the qualified 
electors of the territory. All the powers granted to the 
Governor, Legislative Council and House of Representa¬ 
tives of the North Western Territory were conferred upon 
the Governor, and this Legislative Council of nine per¬ 
sons. The legislature thus created was given “power to 
submit at any time to the people of said territory the 
question, whether a general assembly shall be organized 
agreeably to the provisions of the ordinance aforesaid.” 

In 1825 the electors were authorized to elect twenty- 
six persons from whom President selected thirteen to con¬ 
stitute the legislative council. In 1827 the people were 
authorized to elect the thirteen, without any choice by 
the President. 

In 1790 Congress gave the inhabitants of the territory 
of the United States south of the River Ohio “all the 
privileges, benefits and advantages set forth in the ordi¬ 
nance of the late Congress for the government of the ter¬ 
ritory of the United States Northwest of the River Ohio,” 
with this qualification that Congress should make no 
regulations which should “tend to emancipate slaves,” in 
that part of the territory ceded by the State of North 
Carolina, and since known as Tennessee. 

Kentucky had been a part of Virginia, and was created 
a State and admitted into the Union in 1792, and Ten¬ 
nessee was admitted in 1796, leaving the region south of 


276 


Tennessee, subject to the Act of Congress creating the 
South Territory. In 1798 Congress created the territory 
of Mississippi. The President was authorized to establish 
a government in all respects similar to that of the North¬ 
west Territory, and the people were given all the rights, 
privileges and advantages of the ordinance of 1787. 
Under the ordinance a general assembly could not be 
organized until the territory had five thousand free male 
inhabitants, but in 1800 that limitation was withdrawn 
by Congress and the immediate organization of a general 
assembly was provided for. Kepresentative government 
was only delayed for two years. 

The eastern part of Mississippi Territory was organ¬ 
ized as the Territory of Alabama in 1817 and given im¬ 
mediate representative government. 

The Louisiana Purchase was followed by the Act of 
Congress of 1803 authorizing President Jefferson to take 
possession, and that “all of the military, civil and judi¬ 
cial powers exercised by the existing government of the 
same shall be vested in such person and persons and 
shall be exercised in such manner as the President of the 
United States shall direct for maintaining and protect¬ 
ing the inhabitants of Louisiana in the free enjoyment of 
their liberty, property and religion. 77 

The following year Louisiana was divided into two ter¬ 
ritories. All north of the thirty-three degree of north 
latitude was organized as the District of Louisiana and 
subject to the government of the Governor and Judges 
of Indiana Territory. The southern portion of the ces¬ 
sion was made the territory of Orleans, in which the 
executive power was vested in a Governor appointed by 
the President, and the legislative power was vested in 


277 


the Governor and thirteen real estate holders appointed 
by the President. At lirst there was considerable dis¬ 
satisfaction with American rule, but in 1805 Congress 
extended to the territory so much of the ordinance of 
1787 as relates to the organization of a general assembly, 
and provided that representatives should be elected in 
October and the General Assembly should hold its first 
session in December, 1805. Representative government 
was only withheld three years, and in 1812, ten years 
after the purchase, Orleans Territory was admitted into 
the Union as the State of Louisiana. 

During the Napoleonic wars in Europe the Spanish 
possessions in America were open to naval attack and 
occupancy. Congress in secret session in 1811 passed 
an act authorizing the President to take possession of 
all that part of Florida east of the River Perdido and 
gave him power “to establish within the territory afore¬ 
said a temporary government, and the military civil and 
judicial powers thereof shall be vested in such person 
and persons and be exercised in such manner, as he may 
direct for the protection and maintenance of the in¬ 
habitants of the said territory in the full enjoyment of 
their liberty, property and religion.’ 7 

In 1813 the authority of the President was extended to 
“all that tract of country west of the River Perdido not 
now in the possession of the United States.” 

♦ 

The treaty with Spain for the cession of Florida was 
negotiated in 1819, and Congress passed a similar act 
authorizing the President to take possession when the 
treaty was ratified by the King of Spain, which event did 
not take place until 1821. Congress then passed the Act 
of 1822 establishing a territorial government in which 


278 


the executive power was vested in a Governor appointed 
by the President, and the legislative power was vested in 
the Governor appointed by the President, and in thirteen 
of the most fit and discreet persons of the territory, to be 
called the Legislative Council, who shall be appointed by 
the President with the consent of the Senate from among 
the citizens of the United States residing there. In 1823 
the act was amended so that inhabitants of the Territory 
at the time of the cession were made eligible to appoint¬ 
ment to the legislative council. 

In 1826 Congress provided for the annual election by 
the people of a legislative council, and authorized the 
governor to divide the territory into thirteen election dis¬ 
tricts for that purpose. Representative government was 
only deferred for five years from the ratification of the 
treaty with Spain. 

The Republic of Texas was admitted into the Union as 
a state in 1845, without any prior territorial government. 
This led to the war with Mexico w T hich was terminated 
by the cession to the United States of all the rights of 
Mexico to the territory between the Louisiana Purchase 
and the Pacific ocean, and north and west of Texas, and 
north of Gila River and the southern boundary of Cali¬ 
fornia. 

California was admitted into the Union without any 
prior territorial organization in 1850 and the balance of 
the territory ceded by Mexico and some acquired from 
Texas was made the territory of New Mexico with imme¬ 
diate representative government. 

The creation of the territory of Utah, soon followed, 
and both of these territorial acts contained this provi- 


279 


sion: “That when admitted as a state, the said territory, 
or any portion of the same shall be received into the 
Union with or without slavery, as their constitution may 
prescribe at the time of their admission.” 

The acts for the organization of the territories of New 
Mexico and Utah with the above provision, and the more 
stringent fugitive slave law approved a few days later, 
were a concession to the pro-slavery sentiment of the 
southern states, and the acts for the admission of Cali¬ 
fornia as a free state, and the abolition of the slave trade 
in the District of Columbia, approved shortly afterwards, 
were a concession to the anti-slavery sentiment of the 
northern states. Together these acts constituted the 
compromise of 1850 proposed by Henry Clay, and de¬ 
fended by Daniel Webster, as the last service of these 
distinguished and popular statesmen, in behalf of the 
Union they loved so well. 

The Oregon country consisted of all the territory be¬ 
tween the Rocky mountains and the Pacific ocean, north 
of the north line of California, extended east to the Rocky 
mountains, and south of 54° 40' north latitude. The 
northern boundary was fixed at the 49° by treaty with 
England in 1848. It was immediately organized as the 
Territory of Oregon and given a representative govern¬ 
ment. 

We will now go back to the imperial possessions of 
the Territory of Indiana and the Territory of Michigan. 

The District of Louisiana at first subjected to the gov¬ 
ernment of the Governor and Judges of the Territory of 
Indiana, was organized as the Territory of Louisiana in 
1805, the government of which was vested in a governor 


280 


and three judges appointed by the President. No provi¬ 
sion was made for a general assembly, or representative 
body. When in 1812 the Territory of Orleans was ad¬ 
mitted into the Union as the State of Louisiana, the name 
of the Territory of Louisiana was changed to Missouri, 
and under that name was given representative govern¬ 
ment. No reference was made to the ordinance of 1787, 
but all the provisions of the ordinance of a constitutional 
nature, except the provision prohibiting slavery, were in¬ 
cluded in the Act in the following section: 

“Sec. 1 4. That the people of said territory shall always be 
entitled to a proportionate representation in the general assem¬ 
bly; to judicial proceedings according to the common law and 
the usages in force in said territory; to the benefit of the writ 
of habeas corpus. In all criminal cases the trial shall be by a 
jury of good and lawful men of the vicinage. All persons 
shall be bailable unless for capital offences where the proof 
shall be evident or the presumption great. All fines shall be 
moderate and no cruel or unusual punishment shall be inflicted. 
No man shall be deprived of his life, liberty or property but 
by the judgment of his peers or the law of the land. If the 
public exigencies make it necessary for the common preserva¬ 
tion to take the property of any person, or to demand his par¬ 
ticular services, full compensation shall be made for the same. 
No expost facto law or law impairing the obligation of con¬ 
tracts shall be made. No law shall be made which shall lay 
any person under restraint, burthen, or disability on account 
of his religious opinions, professions or mode of worship in 
all which he shall be free to maintain his own and not bur- 
thened for those of another. Religion, morality and knowl¬ 
edge being necessary to good government and happiness of 
mankind, schools and the means of education shall be encour¬ 
aged and provided for from the public lands of the United 
States in said territory in such manner as congress may deem 
expedient.” 


281 


The southern part of the territory of Missouri was or¬ 
ganized as the Territory of Arkansas in 1819, and provi¬ 
sion was made for representative government so soon as 
the governor was satisfied that such was the desire of the 
majority of the freeholders. 

Part of the territory of Missouri was admitted into the 
Union as the State of Missouri under an act passed by 
Congress in 1820. With the exception of a small tract, 
the whole state was north of latitude 36° 30' and the 
last section of the Act since known as the Missouri com¬ 
promise reads: 

“Sec. 8. That in all that territory ceded by France to the 
United States under the name of Louisiana, which lies north 
of thirty-six degrees and thirty minutes north latitude, not 
included within the limits of the State contemplated by this 
Act, slavery and involuntary servitude otherwise than in the 
punishment of crimes, whereof the parties shall have been duly 
convicted, shall be and is hereby forever prohibited: Pro¬ 
vided, always, that any person escaping into the same, from 
whom labor or service, is lawfully claimed, in any State or ter¬ 
ritory of the United States, such fugitive may be lawfully re¬ 
claimed and conveyed to the person claiming his or her labor 
or service as aforesaid.” 

In 1809 the Territory of Indiana was divided into two 
territories by the creation of the Territory of Illinois, 
which was given jurisdiction, west of the Wabash River 
and a line drawn due North from Post Vincennes. The 
government was to be in all respects similar to that pro¬ 
vided by the ordinance of 1787 and representative gov¬ 
ernment could be established before the territory had five 
thousand free male inhabitants, if satisfactory evidence 
was given to the governor that such was the wish of a 
majority of the freeholders. 


282 


The Territory of Michigan was not divided until 1836, 
when it was about to be admitted into the Union as a 
State. The territory west of the center of Lake Michigan, 
and the channel of Green Bay and the Menominee and 
Montreal Rivers, and east of White Earth river and the 
Missouri river, was given a territorial organization under 
the name of Wisconsin, with immediate representative 
government, and all the rights and subject to all the 
restrictions of the ordinance of 1787. 

In 1838 all that part of the territory of Wisconsin west 
of the Mississippi River and a line drawn due north from 
its head waters, was made the territory of Iowa with the 
same kind of government, and in 1849 when Iowa was 
admitted into the Union, all the territory not included in 
the state was organized as the Territory of Minnesota 
with immediate representative government. 

In 1854 the celebrated Act organizing the Territories 
of Kansas and Nebraska was passed. Immediate repre¬ 
sentative government was thereby established for that 
vast section of country between the summit of the Rocky 
Mountains on the west and the White Earth River and 
the Missouri River and the western boundary of the state 
of Missouri on the east. 

The Act contains the following provision for each of 
said territories: 

“That the constitution and all laws of the United States 
which are not locally inappliable shall have the same force and 
effect within the said Territory as elsewhere within the United 
States, except the eighth section of the Act preparatory to the 
admission of Missouri into the Union, approved March sixth, 
eighteen hundred and twenty, which being inconsistent with 
the principle of non-intervention by Congress with slavery in 
the States and Territories, as recognized by the legislation of 


283 


Eighteen hundred and fifty, commonly called the compro¬ 
mise measures is hereby declared inoperative and void, it 
being the will, intent and meaning of this Act not to legislate 
slavery into any 1 erritory or State nor to exclude it therefrom, 
but to leave the people thereof perfectly free to form and regu¬ 
late their domestic institutions in their own way, subject only 
to the constitution of the United States; Provided, That nothing 
herein contained shall be construed to revive or put in force 
any law or regulation which may have existed prior to the Act 
of March sixth, eighteen hundred and twenty, either protecting, 
establishing, prohibiting or abolishing slavery.” 

If property in slaves had been of the same legitimate 
character as that in cattle and other domestic animals 
this abortive attempt to settle the question of slavery in 
the territories, on the basis of popular sovereignty would 
have been commendable. First proposed by Lewis Cass 
who was a firm and consistent friend of the people during 
a long and useful public service, in the hands of Stephen 
A. Douglas, a strong and able partisan fighter, it enabled 
his party to elect James Buchanan, president, and to de¬ 
lay the attempt of the south to dissolve the Union; but 
it was doomed to utter failure because it authorized a 
violation of the paramount principle of constitutional 
law, that no person shall be deprived of life, liberty or 
property without due process of law. This subject will 
be considered in another volume. We are now tracing 
the progress of representative government across the con¬ 
tinent, 

Washington Territory with representative government 
had been carved out of Oregon in 1853; and in 1861 dur¬ 
ing the closing days of the Buchanan administration and 
after some of the senators from the southern states had 
withdrawn from the senate, bills were passed and ap¬ 
proved by the President, giving the like kind of govern- 


284 


merits to the territories of Colorado, Nevada and Dakota. 
Arizona, Idaho and Montana, followed in 1863 and 1864; 
Wyoming in 1868, and Oklahoma in 1890; all with imme¬ 
diate representative government and in the usual form. 

Alaska was ceded to the United States by Russia in 
1867, and an act passed by Congress in 1868 extended to 
it, the laws of the United States relating to customs, 
commerce and navigation. The act gave the President 
power to restrict and regulate or to prohibit the impor¬ 
tation and use of fire arms, ammunition, and distilled 
spirits into and within said territory, and made it a 
criminal offense to violate such regulations. It was made 
unlawful for any person to kill any otter, mink, martin, 
sable or fur seal or other fur-bearing animal within the 
limit of said territory or in the waters thereof “provided 
that the Secretary of the Treasury shall have power to 
authorize the killing of any such mink, marten, sable, or 
other fur-bearing animals, except fur seals under such 
regulations as he may prescribe; and it shall be the duty 
of the said Secretary to prevent the killing of any fur 
seal and to provide for the execution of the provisions of 
this section until it shall be otherwise provided by law. 
Provided that no special privileges shall be granted under 
this act.” 

Criminal jurisdiction was conferred on the United 
States District Courts in California and Oregon and the 
District Courts in Washington. An Act to prevent the 
extermination of fur-bearing animals in Alaska was 
passed in 1870, and the act of 1834 to regulate trade and 
intercourse with Indian tribes was extended to Alaska 
in 1873. A civil government was established in 1884 by 
making the general laws of the State of Oregon then in 
force “the law in said district so far as the same may be 


285 


applicable and not in conflict with the provisions of this 
act or the laws of the United States” and providing for 
the appointment by the President of a governor, the 
judge of a district court and other officers. The Act 
contained an express provision that there shall be no 
legislative assembly in the District nor any delegate sent 
to Congress. 

In 1899 Congress enacted a complete criminal code for 
Alaska and in 1900 a civil government code, and a code 
of civil procedure. These codes are of the same elaborate 
character as the codes in many of the States, No general 
legislative body is created, Congress thereby retaining 
full legislative control as the only legislature known to 
Alaska. The reason for this exceptional action is the 
isolated situation of the settlements as mining camps 
and towns scattered at great distances from each other 
along an almost endless sea coast and the shores of rivers 
flowing to the sea. 

Under these conditions Congress wisely enacted the 
Alaskan codes, and provided therein for the incorpora¬ 
tion of towns by their inhabitants under the supervision 
of the judge of the United States District Court presid¬ 
ing over the division wherein the community is located. 
The government of these towns is vested in a common 
council of seven members elected by popular vote. A 
school board of three directors is also elected. 

“The council shall have the following powers: 

First: To provide suitable rules governing their own body, 

and to elect one of their number president, who shall be ex- 
officio mayor. 

Second: They may appoint, and at their pleasure remove, 

a clerk, treasurer, assessor, and such other officers as they deem 


necessary. 


286 


Third: To make rules for all municipal elections, provided 

no officer shall be elected for a longer term than one year. 

Fourth: By ordinance to provide for necessary street im¬ 
provements, fire protection, water supply, lights, wharfage, 
sewerage, maintenance of public schools, protection of public 
health, police protection and the expense of the assessment 
and collection of taxes. 

Fifth: To impose and collect a poll tax on electors, tax 

on dogs, a general tax on real and personal property, possesory 
rights and improvements, and such license tax on business 
conducted within the corporate limits as the council may deem 
reasonable; provided no such tax shall exceed one per centum 
on the assessed valuation of property and all assessments made 
by the corporation assessor shall be subject to review in the 
council and appeals may be taken from their decisions to the 
District Court; Provided further, no bonded indebtedness 
whatever shall be authorized for any purpose.” 

Annual elections, and terms of office gave the people 
full control, and prompt means of rescuing the munici¬ 
pality from the rule of corrupt or incompetent representa¬ 
tives or officials; and during the official year the mayor 
and other officers are held strictly responsive to the 
council because they are subject to removal at its pleas¬ 
ure. Legislative power was given over every subject of 
concern to the locality, the only restraints being the 
very wise limitation of the taxing power to one per cent 
annually of the assessed valuation of property, and the 
equally wise entire prohibition of municipal indebted¬ 
ness. With a good code of general laws, and this iden¬ 
tical charter for each municipality, the people who in¬ 
habited Alaska were assured a bright future as far as 
civil government is concerned. Each community was a 
little State. 

In view of the isolated location as compared with each 
other, of the camps and towns of Alaska and until the 


287 


population becomes seated and permanent, Congress 
could not have devised a better way of introducing rep¬ 
resentative government. In the natural course of de¬ 
velopment the local organizations should precede the 
establishment of a general territorial government. In 
the meantime Congress has provided an executive de¬ 
partment in a Governor, and a few other officials and a 
judicial department consisting of District Courts with 
an appellate jurisdiction in the Supreme Court of the 
United States and in the United States Circuit Court of 
Appeals for the Ninth Circuit at San Francisco; and it 
has coupled with these a perfected code of laws, drawn 
from the legal learning and actual experience of the code 
States. 

The serious objection to this plan as a permanent form 
of government is, that Congress is not representative, 
and is too far away to act intelligently. Interested par¬ 
ties will get its ear while the great mass of the people 
will not be heard. However, this condition will only 
be temporary and before long Alaska will be given a 
representative legislature to enable the people to work 
out in their own way their ultimate destiny. 

Hawaii was annexed to the United States in 1898. A 
territorial government with a legislature consisting of 
a House of Representatives, and a Senate, was estab¬ 
lished by Congress in 1900. The people elect the mem¬ 
bers of each of the two houses. The governor, the judges 
of the supreme and the circuit courts, are appointed by 
the President, and the territorial governor with the con¬ 
sent of the territorial senate, appoints the attorney gen¬ 
eral, treasurer and other officers of the territory. The 
Act extends to the territory the constitution of the 
United States; and, except as otherwise provided, all the 


288 


laws of the United States, which are not locally inapplica¬ 
ble. The excepted laws are a provision of the revised 
statutes requiring territories, other than Colorado, 
Dakota, Idaho, Montana and Wyoming, to submit their 
laws to Congress for approval, and a provision prohibit¬ 
ing religious and charitable corporations in any terri¬ 
tory from holding real estate of a greater value than 
fifty thousand dollars. 

The legislative power extends “to all rightful subjects 
of legislation not inconsistent with the constitution and 
laws of the United States locally applicable.” As far 
as taxation and legislation is concerned Hawaii has a 
truly representative government, with this qualification 
that the governor is given power to “veto any specific 
item or items which appropriates money for specific pur¬ 
poses,” and he is given an absolute veto, after the man¬ 
ner of the constitution of the United States, on all bills 
passed during the last ten days of a legislative session, if 
he sees fit to “pocket” the measure and not return it 
with his objections to the legislature so as to give an 
opportunity to pass it over his veto by a two- thirds 
vote of each house. 

BIBLIOGRAPHY. “Outlines of the Political History of 
Michigan,” by James Valentine Campbell, for thirty-three years 
one of the judges of the Supreme Court of Michigan, and for 
twenty years a lecturer in the Law Department of the State 
University, should be read by every student of law who desires 
to become familiar with the historical events, which resulted in 
the great State of Michigan, and the beautiful and thriving 
City of Detroit. 


I 


289 


XIII. 

The Legislative. 

(Continued). 

The Treaty with Spain ceding the Philippine Islands, Porto 
Rico and Guam to the United States—Should the Philippine 
Islands be given their independence? 

The Treaty with Spain ceding the Philippine Islands, 
Porto Rico, and Guam, to the United States was en¬ 
tered into Dec. 10, 1898, and the ratifications were ex¬ 
changed and the treaty proclaimed April 11, 1899. 

Prior to the treaty, the United States had acquired 
possession of the Islands by conquest, and their tem¬ 
porary government was intrusted to the military au¬ 
thorities under orders and instructions of President Mc¬ 
Kinley as commander in chief of the army and navy. 

An executive order, July 2, 1898, signed by President 
McKinley, and issued by virtue of his authority as com¬ 
mander in chief of the army and navy of the United 
States, directed “that upon the occupation and posses¬ 
sion of any parts and places in the Philippine Islands by 
the forces of the United States, the following tariff of 
duties and taxes to be levied and collected as a military 
contribution; and regulations for the administration 
thereof, shall take effect and be in force in the ports and 
places so occupied. 

“Questions arising under said tariff and regulations 
shall be decided by the general in command of the United 
States forces in those islands.” 


290 


Annexed to the order was a schedule of duties on ex¬ 
ports from and imports into the islands, with a small 
free list. No distinction was made in favor or against 
imports from, or exports to the United States. 

An executive order, Dec. 21, 1898, signed by President 
McKinley and directed to the secretary of war, declar¬ 
ed that “the destruction of the Spanish fleet in the har¬ 
bor of Manila by the United States naval squadron com¬ 
manded by Rear Admiral Dewey, followed by the reduc¬ 
tion of the city and the surrender of the Spanish forces, 
practically effected the conquest of the Philippine Islands 
and the suspension of Spanish sovereignty therein.” 

After referring to the treaty of Dec. 10, 1898, the 
President then went on to indicate the policy the United 
States would pursue in assuming the control and gov¬ 
ernment of the islands and among other things said: 

“Within the absolute domain of military authority, 
which necessarily is and must remain supreme in the 
ceded territory until the legislation of the United States 
shall otherwise provide, the municipal laws of the terri¬ 
tory in respect to private rights and property, and the 
repression of crime are to be considered as continuing 
in force and to be administered by the ordinary tribu¬ 
nals so far as practical.” 

An executive order, Jan. 20, 1899, signed by President 
McKinley and directed to the secretary of state, an¬ 
nounced the appointment of a commission consisting of 
Jacob G. Schurman, Rear Admiral Dewey, Maj. Gen. 
Otis, Charles Denby and Dean C. Worcester, to visit 
the Philippine Islands to “aid in the extension of au¬ 
thority throughout the islands and to secure with the 


291 


least possible delay the benefits of a wise and generous 
protection of life and property to the inhabitants.” 

The duties of the commission were only advisory: 
“The temporary government of the islands is intrusted to 
the military authorities as already provided for by my 
instructions to the secretary of war of December 21, 
1898, and will continue until Congress shall determine 
otherwise.” 

This commission visited the Islands as directed, and 
Jan. 31, 1900, submitted their report to the President, 
wTio transmitted it to Congress Feb. 2, 1900. (36th Cong. 
1st sess. Senate Document No. 138). 

An act of Congress approved March 2, 1899, appropri¬ 
ated $20,000,000, to carry out the obligations of the 
United States to Spain under the treaty of Dec. 10, 1898. 

An executive order, April 7, 1900, signed by President 
McKinley and directed to the secretary of war, appointed 
William H. Taft, Dean C. Worcester, Luke I. Wright, 
Henry C. Ide and Bernard. Moses “commissioners to 
the Philippine Islands to continue and perfect the work 
of organizing and establishing civil government already 
commenced by the military authorities, subject in all 
respects to any laws which congress may hereafter 
enact.” 

“Beginning with the 12th day of September, 1900, 
the authority to exercise, subject to my approval, through 
the secretary of war, that part of the power of govern¬ 
ment in the Philippine Islands which is of a legislative 
nature, is to be transferred from the military governor 
of the islands to this commission to be thereafter exer¬ 
cised by them in the place and stead of the military gov- 


292 


ernor, under such rules and regulations as you shall 
prescribe, until the establishment of the civil central 
government for the islands, contemplated in the last 
foregoing paragraph, or until congress shall otherwise 
provide.” 

“Exercise of this legislative authority will include the 
making of rules and orders having the effect of law for 
raising of revenue by taxes, customs duties and im¬ 
posts; the appropriation and expenditure of public funds 
of the islands; the establishment of an educational sys¬ 
tem throughout the islands ; the establishment of a sys¬ 
tem to secure an efficient civil service; the organization 
and establishment of courts; the organization and es¬ 
tablishment of municipal and departmental governments, 
and all other matters of a civil nature for which the 
military governor is now competent to provide by rules 
or orders of a legislative character.” 


This order imposed “upon every division and branch 
of the government of the Philippines,” as “inviolable 
rules,” all of the bill of rights of the constitution of 
the United States except the right to a trial by jury, and 
the right to keep and bear arms. 


It secured to the Philippines all of the constitutional 
rights of American citizens, with four exceptions: 

1. The right to representative taxation and legis¬ 
lation. 

2. The right to a free and unobstructed commerce be¬ 
tween the islands and the other territory of the United 
States, whether state, territorial or unorganized. 


293 


3. The right to a jury trial as a part and parcel of 
the American system of representative government. 

4. The right to keep and bear arms as essential to a 
well regulated militia, and the security of a free state. 

The first act of Congress for the government of the 
Philippine Islands was passed as a most appropriate 
rider on the act of March 2, 1901, for the support of the 
army. It reads: 

“All military, civil and judicial powers necessary to 
govern the Philippine Islands acquired from Spain by 
the treaties concluded at Paris on the tenth day of De¬ 
cember, eighteen hundred and ninety-eight, and at Wash¬ 
ington on the seventh day of November, nineteen hundred, 
shall until otherwise provided by Congress, be vested 
in such person or persons and shall be exercised in 
such manner as the President of the United States shall 
direct, for the establishment of civil government and for 
maintaining and protecting the inhabitants of said 
islands in the free enjoyment of their liberty, property, 
and religion; provided that all franchises granted under 
the authority hereof shall contain a reservation of the 
right to alter, amend or repeal the same.” 

The Act further provided for reports to Congress, 
prohibited sales, leases, or other disposition of the public 
lands or the timber thereon, or mining rights therein; 
and it “Provided further that no franchise shall be 
granted which is not approved by the President of the 
United States, and is not in his judgment clearly neces¬ 
sary for the immediate government of the islands and in¬ 
dispensable for the interest of the people thereof, and 
which cannot without great public mischief be postponed 
until the establishment of permanent civil government; 


294 


and all such franchises shall terminate one year after 
the establishment of such permanent civil government.” 

Under the authority of this act the President by an 
executive order, June 21, 1901, vested the executive au¬ 
thority in all civil affairs in the government of the 
Philippine Islands, in the President of the Philippine 
Commission, and appointed William H. Taft, president 
of the commission, civil governor of the Philippine 
Islands from the 4th day of July, 1901. 

“Such executive authority will be exercised under and 
in conformity to the instructions to the Philippine Com¬ 
mission, dated April seventh, nineteen hundred, and sub¬ 
ject to the approval and control of the secretary of war 
of the United States.” 

“An act to revise and amend the tariff laws of the 
Philippine Archipelago” was enacted by the ’ Philippine 
Commission Sept. 17, 1901. 

It fixed duties at specified rates, on all articles, goods 
and merchandise imported into the Philippine Islands, 
with a few articles in the free list; and it imposed ex¬ 
port duties on hemp, indigo, rice, sugar, cocoanuts and 
tobacco manufactured or raw. 

An act of Congress temporarily to provide revenue for 
the Philippine Islands and for other purposes, was ap¬ 
proved March 8, 1902. It continued in force the tariff 
act of the United States Philippine Commission of Sept. 
17, 1901, and provided that “There shall be levied, col¬ 
lected and paid upon all articles coming into the Philip¬ 
pine Archipelago from the United States, the rates of 
duty which are required to be levied, collected and paid 
upon like articles imported from foreign countries into 


295 


said archipelago;” and that “there shall be levied and 
collected and paid upon all articles coming into the 
United States from the Philippine Archipelago the rates 
of duty which are required to be levied, collected and 
paid upon like articles imported from foreign countries: 
Provided, that upon all articles the growth and product 
of the Philippine Archipelago coming into the United 
States from the Philippine Archipelago there shall be 
levied and collected and paid, only seventy-five per 
centum of the rates of duty aforesaid; and provided fur¬ 
ther that the rates of duty which are required hereby 
to be levied, collected and paid upon products of the 
Philippine Archipelago, coming into the United States 
shall be less any duty or taxes levied, collected and paid 
thereon upon the shipment thereof from the Philippine 
Archipelago as provided by the act of the United States 
Philippine Commission referred to in Section 1 of this 
Act, under such rules and regulations as the Secretary 
of the Treasury may prescribe, but all articles the growth 
and product of the Philippine Islands admitted into the 
ports of the United States free of duty under the pro¬ 
visions of this act and coming directly from said Islands 
to the United States for use and consumption therein 
shall be hereafter exempt from any export duties im¬ 
posed in the Philippine Islands.” 

It was further provided “that the duties and taxes col¬ 
lected in the Philippine Archipelago in pursuance of this 
act and all duties and taxes collected in the United States 
upon articles coming from the Philippine Archipelago 
and upon foreign vessels coming therefrom, shall not be 
covered into the general fund of the treasury of the 
United States, but shall be held as a separate fund and 
paid into the Treasury of the Philippine Islands to be 


296 


used and expended for the government and benefit of said 
islands.” 

“That no person in the Philippine Islands shall, under 
the authority of the United States, be convicted of treason 
by any tribunal, civil or military, unless on the testimony 
of two witnesses to the same overt act, or on confession 
in open court.” 

An Act of Congress temporarily to provide for the 
administration of the affairs of civil government in the 
Philippine Islands and for other purposes was approved 
July 1, 1902. 

It approved, ratified and confirmed the executive orders 
of President McKinley, dated April 7, 1900, and June 
21, 1901, and the creation of four executive departments 
of government in the Islands as set forth in an act of 
the Philippine Commission of September 6, 1901, organ¬ 
izing the departments of the interior, or commerce and 
police, of finance and justice, and of public instruction. 

It further provided that “until otherwise provided by 
law the said Islands shall continue to be governed as 
thereby and herein provided, and all laws passed here¬ 
after by the Philippine Commission shall have an enact¬ 
ing clause as follows : 'By authority of the United States 
be it enacted by the Philippine Commission.’ ” 

It was declared that Section 1891 of the Revised 
Statutes of the United States should not apply to the 
Philippine Islands. That section reads: 

“Sec. 1891. The constitution and all the laws of the 
United States which are not locally inapplicable shall 
have the same force and effect within all the organized 


297 


territories and in every territory hereafter organized as 
elsewhere within the United States.” 

The appointment of the Civil Governor, Vice-Governor, 
members of the said Commission and heads of executive 
departments, was vested in the President by and with the 
advice and consent of the Senate. 

The action of the President in issuing his order of July 
12, 1898, and the amendments thereof, and the action 
taken thereunder, were approved, ratified and confirmed, 
with a proviso that this should not be held to amend or 
repeal the Act of March 8, 1902. 

The Bill of Rights and other provisions of the Consti¬ 
tution applicable to the Islands were made the supreme 
law, but as in the order of the President of April 7, 1900, 
the right to a jury trial, the right to bear arms, and the 
right to free trade with other parts of the United States 
were withheld. 

Provision was made for representative government. 
When the then existing insurrection in the Islands should 
cease and a general and complete peace established, a 
census was directed to be taken, and two years after the 
completion and publication of the census, the President 
was authorized to direct the Philippine Commission to 
call “a general election for the choice of delegates to a 
popular assembly of the people of said territory in the 
Philippine Islands which shall be known as the Philip¬ 
pine Assembly.” 

“Said Assembly shall consist of not less than fifty nor 
more than one hundred members, to be apportioned by 
said Commission, among the provinces as nearly as prac- 


298 


ticable according to population; Provided, that no prov¬ 
ince shall have less than one member; and, Provided 
further, that provinces entitled by population to more 
than one member may be divided into such convenient 
districts as said Commission may deem best.” 

“After said Assembly shall be convened and organized 
all the legislative power heretofore conferred on the 
Philippine Commission in all parts of said Islands not 
inhabited by Moros or other non-Christian tribes shall 
be vested in a Legislature consisting of two houses—the 
Philippine Commission and Philippine Assembly.” 

Annual sessions and biennial elections and the election 
by the Legislature of two resident Commissioners to 
the United States were provided for. Courts were estab¬ 
lished with a, right of review in the Supreme Court of 
the United States. 

Thus we see that while Congress deferred the granting 
of representative government to the Philippine Islands, 
it made provision for it, and it cannot be said that Con¬ 
gress has shown any intention to permanently withhold 
from the people of the Philipine Islands any of constitu¬ 
tional rights of American citizens. Representative gov¬ 
ernment is assured, and commercial freedom, and jury 
trials will follow in due season. 

Give the Philippine Islands the same freedom of trade 
as prevails between the other Territories and the several 
States and the material prosperity which would follow 
would do more to make their inhabitants contented and 
patriotic citizens than any other thing Congress could 
do, and it would at the same time add to the prosperity 
of the whole country. Trade left to its natural channels 
is reciprocally advantageous. The Philippine Islands 


299 


can produce the very things needed by the other parts 
of the United States, and these can produce the very 
things needed in the Philippine Islands. Burdensome 
and ruinous State tariff laws were the principal griev¬ 
ance which made the Constitution of the United States 
with its commercial clauses possible, and there is no 
ground on which its beneficence can be denied to any 
territory within the national domain. 

An Act temporarily to provide revenues and a civil 
government for Porto Rico and for other purposes was 
approved April 12, 1900. A temporary tariff between the 
States and Porto Rico was established but was not to 
continue beyond March 1, 1902, and provision was made 
for its earlier termination, and it was terminated, by a 
proclamation of the President issued July 1, 1901, to 
take effect July 25, 1901, which was the anniversary of 
the coming of the American flag to the island. Ample 
provision was made for a legislative assembly consisting 
of an executive council of eleven persons appointed by 
the President, at least five of whom to be native inhabit¬ 
ants and a house of delegates of thirty-five members 
elected in seven districts by popular vote. 

Our examination of the territorial or colonial policy 
of the United States, as shown and recorded in the or¬ 
dinance of 1787, and subsequent acts of Congress, leads 
to the conclusion that the principles of representative 
government and constitutional restraints, are so fixed in 
the minds of Americans that they are eventually ex¬ 
tended to all new acquisitions of territory. For the more 
part this has been promptly done, and in no case has it 
been long delayed. 

In the creation of territorial governments as well as in 


300 


the admission of new States, Congress does not delegate, 
except temporarily, its legislative power; it simply defines 
the territorial limits of each government organized; pre¬ 
scribes or approves the framework or structure of each 
new State or territorial government; and recognizes the 
inherent right of the people of the several subdivisions 
into which the country is thus divided, to govern them¬ 
selves, in the management and conduct of their own local 
affairs, subject only in case of the states, to the limita¬ 
tions imposed by the Constitution of the United States, 
and in the case of the territories to such additional limi¬ 
tations as may be imposed by Congress. 

It is this system of decentralized and thoroughly local¬ 
ized state and territorial governments which makes great 
territorial possessions, without tyranny, possible and 
qualifies the United States to acquire territory in any 
part of the world, where the national interests may be 
subserved, and the cause of representative government 
and constitutional freedom may be advanced. 

Having considered the local self-government of the 
United States to the creation of territorial governments, 
and the admission of new states into the Federal Union, 
we will make a, brief reference to the local self-govern¬ 
ment of the several states and territories, in the organ¬ 
ization of townships and counties, villages and cities, and 
other taxative and legislative districts, such as school and 
highway districts. Here we find the principles of repre¬ 
sentative taxation and legislation have been almost uni¬ 
versally observed, but in some instances they have been 
ignored and violated, and in some of the states the 
judiciary have not interposed to preserve to the people 
their ancient and inherent right to govern and tax them¬ 
selves in the conduct of their own local affairs. 


301 


In other states the courts of last resort have had a 
clearer conception of the constitutional principles in¬ 
volved, and a higher appreciation of the importance of 
maintaining local rights as the most acceptable and 
efficient means of strengthening, not only the state gov¬ 
ernments, hut that of the nation as well. Without the 
townships, villages, cities and counties the states and 
territories would lose a great deal of their vigor and 
efficiency; and without the states national government 
would speedily become tyrannical, oppressive and odious. 
Home rule as it exists in America is the strength and 
glory of the nation; it makes the government of vast 
dominions inhabited by millions upon millions of people 
possible, without the exercise of arbitrary and despotic 
power, which would be inevitable if the multitudinous 
affairs of the American people were governed and con¬ 
trolled by one general and central authority. 

There is a general sentiment, which pervades both of 
the great political parties, and all classes of citizens, 
that the acquisition of the Philippine Islands was a mis¬ 
take and that their independence should be declared and 
the forces of the United States withdrawn therefrom. I 
am of a contrary opinion. The completion of the Panama 
Canal makes it certain that the Pacific is speedily to 
become the greatest and most important of all the seas 
which are the highways of the nations, and on which 
float the commerce of the world. 

The Philippine Islands in area are larger than the 
British Isles, or the four Japanese islands w T hich are the 
main possessions of the Mpon Empire. 

The natural and almost wholly undeveloped resources 
of the Philippine Islands are immense and are equal to 
those of any other region on earth of like area. 


302 


It is said that if we keep the islands we will have to 
maintain a large navy to protect them, which is true; hut 
as long as all mankind are as warlike as they appear to 
he we will need a large navy, anyway. If the protection 
of the Pacific Coast were the only purpose of a navy, a 
small one would do; but the Pacific Ocean must he kept 
open and free for our trade and commerce, and it can 
only he done with a large and efficient navy. Japan holds 
Formosa, an island north of the Philippines, and Great 
Britain holds a predominating influence in northwest 
Borneo, not far to the southeast, with Australia and 
New Zealand to the south. 

It is fortunate that the United States have ample pos¬ 
sessions between these two great sea powers, hut if we 
should abandon the Philippines they would become easy 
prey for the one or the other, or of Germany if she should 
obtain dominion of the seas. The United States in their 
own interests are bound to protect the Philippines 
whether they are independent or not. There is no way 
of escaping the burden unless we are willing to concede 
that we have no interest in the future commerce of the 
Pacific Ocean. 

Local self-government should be extended to the Philip¬ 
pine Islands, in the same gradual and beneficent way it 
has been extended to our continental possessions, and 
ultimately the islands should be a state in our Federal 
Union, or have the same relations with the United States 
as Canada and Australia have with Great Britain, minus 
the power to levy tariff duties between the Islands and 
the United States. 

Nations, like individuals and all animate creation, are 
engaged in a constant struggle for existence; and the 
United States, the greatest representative-democracy the 


303 


world has ever seen, are not prepared to give up, and like 
the defeated champions of old, cry “Craven.” 

There is still a stronger reason why the Philippine 
Islands should be retained. Thanks to the men who 
framed the Constitution of the United States, that in¬ 
strument grants freedom of trade throughout the length 
and breadth of the land, and it is the great source of 
our prosperity and happiness. 

If the Philippine Islands were independent, burden¬ 
some duties on exports to and imports from, the United 
States would be imposed, whereas the truth is, that the 
people of the United States are directly interested in 
having the utmost freedom of commerce between the two. 
The Philippine Islands produce the very things the one 
hundred millions of people in the states need, such as 
sugar, hemp and timber and the States produce the 
manufactures and capital, the Filipinos need. Exchange 
of these is mutually advantageous and it is a commerce 
that should be wholly unrestricted. 

BIBLIOGRAPHY. Having traced in outline the history of 
representative government, from the woods of Germany before 
the Christian era, down to the present day in these United 
States, 1 will bring these lectures on the legislative to a close, 
by referring you to some other historical works illustrative of 
the general subject. 

“A Student’s Manual of English Constitutional History,” by 
Dudley Julius Medley, Professor of History in the University 
of Glasgow, is a most excellent work for use in Law Schools. 
A fourth edition was published by B. H. Blackwell, Oxford, 
Eng., in 1907. 

“A Short Constitutional History of England,” by H. St. 
Clair Fielden, is valuable because of its classification of sub¬ 
jects, and its definitions and descriptions. Blackwell published 
a fourth edition in 1911. 


304 


“The Growth of the English Constitution,” by Edward A. 
Freeman, the author of the History of the Norman Conquest 
of England, is very interesting because it brings out the demo¬ 
cratic features of the English Constitution. 

“Introduction to the Study of the Law of the Constitution,” 
by A. V. Dicey, written from the legal standpoint, with but 
little reliance on the antiquarianism of Freeman and other his¬ 
torians. A sixth edition was published by MacMillan and 
Company of New York and London in 1902. 

“The Law and Custom of the Constitution” in two volumes, 
by William R. Anson, is a standard work. A second edition 
was published by the Clarenden Press, Oxford, in 1892. 

Last but not least of these English authors, you should read 
the lectures on the “Constitutional History of England,” by 
Frederick W. Maitland, Professor of the Laws of England in 
the University of Cambridge, which after liis death were pub¬ 
lished by the University Press, Cambridge, Eng. 

“Commendaries on the Constitution of the United States,” 
in 2 vols., by Joseph Story, an eminent associate justice of the 
Supreme Court of the United States. Read the dedication to 
Chief Justice Marshall, and the preface. A fourth edition with 
notes and additions by Thomas M. Cooley, was published by 
Little, Brown & Company of Boston, in 1873. 

“The Origin and Growth of the English Constitution,” in 2 
vols., by Hannis Taylor, “in which is drawn out by the light 
of the most recent researches, the gradual development of the 
English constitutional system, and the growth out of that 
system of the Federal Republic of the United States;” and his 
“The Origin and Growth of the American Constitution,” in 1 
vol., are the most learned and exhaustive historical treatises 
covering the whole subject of American constitutional history 
and law yet produced. 

These lectures are nothing more than a crude introduction 
to the works of Mr. Taylor. 

There are other works too numerous to mention. I have 
referred you in the course of these lectures to enough to occupy 
your leisure hours for the next ten years. 


305 


XIV. 

The, Legislative. 

(Continued.) 

The New York Charters of Liberty of 1683 and 1691_ 

Objections on which the Duke of York as Jas. II. annulled the 
act of 1 683—Adverse report of Lords of Trade on which Wil¬ 
liam III, repealed the act of 1691 —Legislative forms. 

It would be a mistake to close these lectures on the 
legislative without calling the attention of the class and 
my readers to the first American attempt to establish 
a written constitution with restrictions on the powers of 
the government. 

Col. Thomas Dongan, a Catholic of good judgment and 
genteel manners, was commissioned as governor of New 
York Sept. 30, 1682. The written instructions accom¬ 
panying his commission authorized him, among other 
things, to appoint a council of not more than ten, and 
with the advice of the council to summon “a general as¬ 
sembly of all the freeholders, by the persons who they 
shall choose to represent them,” not exceeding eighteen. 

Under this authority Governor Dongan did call such 
an assembly, which began its first session at Fort James 
in New York City Oct. 17, 1683. The first act it passed 
was given the title of a charter of liberties in the hope 
that it would be approved by the Duke of York, and 
would not be repealed by King Charles II. 

The journal of this assembly is not in existence, and 
the names of the members are not known, further than 
that Mathias Nicolls was elected speaker. The proposed 


306 


charter of liberties was his work in the main, and if not, 
then of some equally capable and experienced English 
member. 

Two-thirds of the members were Dutch, and the others 
were Englishmen from New York City and Long Island. 
As Mathias Nicolls, signed the act as speaker, it is proper 
to give him credit for it as the historians do. His public 
services to the colony show that he was w T ell qualified to 
frame an act setting forth the rights of the people of the 
colony as subjects of the King of England. 

Mathias Nicolls (1630-1687) was a barrister in' Lin¬ 
coln’s Inn when he was appointed by Charles II. in 1664 
secretary of the commission, and a captain in the forces, 
under Col. Richard Mcolls, who w T as sent out to capture 
New Netherlands from the Dutch. Mathias Nicolls 
served continuously as secretary of the province, was a 
member of the governor’s council, presiding judge of the 
Provincial Court of Assizes, and he also sat with the 
justices in the minor courts of session; he was the third 
Mayor of New York City, and the first judge of the 
Court of Common Pleas in that city; was speaker of the 
first and second legislative assemblies and one of the 
judges of the Supreme Court of the colony. The first 
service he appears to have rendered was that of preparing 
the code of laws for New York, known as “The Dukes’ 
Laws,” which were approved by the Duke, and were 
promulgated by Governor Richard Nicolls, at Hempsted 
March 1, 1665. These laws were compiled from the law 
of England, the Dutch law of New Netherlands, and the 
laws and regulations of the New England colonies, and 
they have been deservedly characterized as “a liberal, 
just and sensible body of laws.” (4 Appelton’s Am. 
Biog., 517.) 


307 


THE CHARTER of Libertyes and Priviledges Granted 
by His Royall Highnesse to the Inhabitants of 
New Yorke; and Its Dependencyes. 

[Passed, October 30, 1683.] 

iior ihe better Establishing the Government of this province 
of New Yorke and that Justice and Right may be Equally done 
to all persons within the same. 

BEE It Enacted by the Governour Councell and Representa¬ 
tives now in Generali Assembly Assembly mett and assembled 
and by the authority of the same. 

IHA1 Ihe Supreme Legislative Authority under his Majesty 
and Royall Highnesse James Duke of Yorke Albany &c Lord 
proprietor of the said province shall forever be and reside in 
a Governour, Counceil, and the people mett in Generali As¬ 
sembly. 

THAI The Exercise of the Cheife Magistracy and Adminis- 
tracon of the Government over the said province shall bee in 
the said Governour assisted by a Counceil with whose advice 
and Consent or with at least four of them he is to rule and 
Governe the same according to the Lawes thereof. 

THAT in Case the Governour shall dye or be absent out of the 
province and that there be noe person within the said province 
Comissionated by his Royal Highnesse his heires or Successours 
to be Governour or Comander in Cheife there That then the 
Counceil for the time being or Soe many of them as are in the 
Said province doe take upon them the Administracon of the 
Governour and the Execucon of the Lawes thereof and powers 
and authorityes belonging to the Governour and Counceil the 
first in nominacon in which Counceil is to preside untill the 
said Governour shall returne and arrive in the said province 
again, or the pleasure of his Royall Highnesse his heires or Suc¬ 
cessours Shall be further knowne. 

THAT According to the usage Custome and practice of the 
Realme of England a sessions of a Generali Assembly be held 
in this province once in three yeares at least. 


308 


THAT Every ^freeholder within this province and ffreeman in 
any Corporacon Shall have his free Choise and Vote in the 
Electing of the Representatives without any manner of con¬ 
straint or Imposicon. And that in all Eleccons the Majority 
of Voices shall carry itt and by freeholders is understood every 
one who is Soe understood according to the Lawes of England. 

THAT the persons to be Elected to sitt as representatives in 
the Generali Assembly from time to time for the severall 
Cittyes townes Countyes Shires or Divisions of this province 
and all places within the same shall be according to the pro- 
porcon and number hereafter Expressed that is to say for the 
Citty and County of New Yorke four, for the County of Suf- 
folke two, for Queens County two, for Kings County two, for 
the County of Richmond two for the County of West Chester 
two, for the County of Ulster two for the County of Albany 
two and for Schnectade within the said County one for Dukes 
County two, for the County of Cornwall two and as many 
more as his Royall Highnesse shall think fitt to Establish. 
THAT All persons Chosen and Assembled in manner aforesaid 
or the Major part of them shall be deemed and accounted the 
Representatives of this province which said Representatives 
together with the Governour and his Councell Shall forever be 
the Supreame and only Legislative power under his Royall 
Highnesse of the said province. 

THAT The said Representatives may appoint their owne 
Times of meeting dureing their sessions and may adjourne 
their house from time to time to such time as to them shall 
seeme meet and convenient. 

THAT The said Representatives are the sole Judges of the 
Qualificacons of their owne members, and likewise of all undue 
Eleccons and may from time to time purge their house as they 
shall see occasion dureing the said sessions. 

THAT noe member of the gerneral Assembly or their servants 
dureing the time of their Sessions and whilest they shall be 
goeing to and returning from the said Assembly shall be 
arrested sued imprisoned or any wayes molested or troubled 
nor be compelled to make answere to any suite, Bill, plaint, 


309 


Declaracon or otherwise, (Cases of High Treason and felony 
only Excepted) provided the number of the said servants shall 
not Exceed three. 

THAT All bills agreed upon by the said Representatives or 
the Major part of them shall be presented unto the Governour 
and his Councell for their Approbacon and Consent, All and 
Every which Said Bills soe approved of Consented to by the 
Governour and his Councell shall be Esteemed and accounted 
the Lawes of the province, Which said Lawes shall continue 
and remaine of force untill they shall be repealed by the au¬ 
thority aforesaid that is to say the Governour Councell and 
Representatives in General Assembly by and with the Appro- 
bacon of his Royal Highnesse or Expire by their owne Limitta- 
cons. 

THAT In all Cases of death or removall of any of the said 
Representatives The Governour shall issue out Sumons by 
Writt to the Respective Townes Cittyes Shires Countryes or 
Divisions for which he or they soe removed or deceased were 
Chosen willing and requireing the freeholders of the Same to 
Elect others in their place and stead. 

THAT Noe freeman shall be taken and imprisoned or be 
disseized of his ffreehold or Libertye or ffree Customes or 
be outlawed or Exiled or any other wayes destroyed nor shall 
be passed upon adjudged or condemned But by the Lawfull 
Judgment of his peers and by the Law of this province. Jus¬ 
tice nor Right shall be neither sold denyed or deferred to any 
man within this province. 

THAT Noe aid. Tax, Tallage, Assessment, Custome, Loane, 
Benevolence or Imposicon whatsoever shall be layed assessed 
imposed or levyed on any of his Majestyes Subjects within this 
province or their Estates upon any manner of Colour or pre¬ 
tence but by the act and Consent of the Governour Councell 
and Representatives of the people in Generali Assembly mett 
and Assembled. 

THAT Noe man of what Estate or Condicon soever shall be 
putt out of his Lands or Tenements, nor taken, nor imprisoned. 


310 


nor disherited, nor banished nor any wayes distroyed without 
being brought to Answere by due Course of Law. 

THAT A ffreeman Shall not be amerced for a small fault, but 
after the manner of his fault and for a great fault after the 
Greatnesse thereof Saveing to him his freehold, And a hus¬ 
bandman saveing to him his Wainage and a merchant likewise 
saveing to him his merchandize And none of the said Amer¬ 
ciaments shall be assessed but by the oath of twelve honest 
and Lawfull men of the Vicinage provided the faults and mis¬ 
demeanours be not in Contempt of Courts of Judicature. 

ALL Tryalls shall be by the verdict of twelve men, and as neer 
as may be peers or Equalls And of the neighbourhood and in 
the County Shire or Division where the fact Shall arise or grow 
Whether the Same be by Indictment Infermacon Declaracon or 
otherwise against the person Offender or Defendant. 

THAT In all Cases Capitall or Criminall there shall be a grand 
Inquest who shall first present the offence and then twelve 
men of the neighbourhood to try the Offender who after his 
plea to the Indictment shall be allowed his reasonable Chal¬ 
lenges. 

THAT In all Cases whatsoever Bayle by sufficient Suretyes 
Shall be allowed and taken unless for treason or felony plainly 
and specially Expressed and menconed in the Warrant of Com¬ 
mittment provided Alwayes that nothing herein contained shall 
Extend to discharge out of prison upon bayle any person taken 
in Execucon for debts or otherwise legally sentenced by the 
Judgment of any of the Courts of Record within the province. 
THAT Noe ffreeman shall be compelled to receive any Mar- 
riners or Souldiers into his house and there suffer them to 
Sojourne, against their willes provided Alwayes it be not in 
time of Actuall Warr within this province. 

THAT Noe Comissions for proceeding by Marshall Law 
against any of his Majestyes Subjects within this province shall 
issue forth to any person or persons whatsoever Least by 
Colour of them any of his majestyes Subjects bee destroyed or 
putt to death Except all such officers persons and Souldiers in 
pay throughout the Government. 


311 


THAT from hence forward Noe Lands within this province 
shall be Esteemed or accounted a Chattle or personall Estate 
but an Estate of Inheritance according to the Custome and 
practice of his Majestyes Realme of England. 

THAT Noe Court or Courts within this province have or at 
any time hereafter Shall have any Jurisdiccon power or author¬ 
ity to grant out any Execucon or other writt whereby any mans 
Land may be sold or any other way disposed off without the 
owners Consent provided Alwayes That the issues or meane 
proffitts of any mans Lands shall or may be Extended by Exe¬ 
cucon or otherwise to satisfye just debts Any thing to the Con¬ 
trary hereof in any wise Notwithstanding. 

THAT Noe Estate of a feme Covert shall be sold or conveyed 
But by Deed acknowledged by her in Some Court of Record 
the Woman being secretly Examined if She doth it freely with¬ 
out threats or Compulsion of her husband. 

THAT All Wills in writeing attested by two Credible Witnesses 
shall be of the same force to convey Lands as other Convey¬ 
ances being registered in the Secretaryes Office within forty 
dayes after the testators death. 

THA I A Widdow after the death of her husband shall have 
her Dower And shall and may tarry in the Cheife house of her 
husband forty dayes after the death of her husband within 
which forty dayes her Dower shall be assigned her And for her 
Dower shall be assigned unto her the third part of all the Lands 
of her husband dureing Coverture, Except shee were Endowed 
of Lesse before Marriage. 

T HAT All Lands and Heritages within this province and De- 
pendencyes shall be free from all fines and Lycences upon 
Alienacons, and from all Herriotts Ward Shipps Liveryes 
primer Seizins yeare day and Wast Escheats and forfeitures 
upon the death of parents and Ancestors naturall unnaturall 
casuall or Judiciall, and that forever; Cases of High treason 
only Excepted. 

THAT Noe person or persons which professe ffaith in God by 
Jesus Christ Shall at any time be any wayes molested punished 


312 


disquieted or called in Question for any Difference in opinion 
or Matter of Religious Concernment, who doe not actually dis¬ 
turb the Civill peace of the province, But that all and Every 
such person or persons may from time to time and at all times 
freely have and fully enjoy his or their Judgments or Con- 
sciencyes in matters of Religion throughout all the province, 
they behaveing themselves peaceably and quietly and not use- 
ing this Liberty to Lycentiousnesse nor the civill Injury or out¬ 
ward disturbance of others provided Alwayes that this liberty 
or any thing contained therein to the Contrary shall never be 
Construed or improved to make void the Settlement of any 
publique Minister on Long Island Whether Such Settlement be 
by two thirds of the voices in any Towne thereon which shall 
alwayes include the Minor part Or by Subscripcons of perticu- 
ler Inhabitants in Said Townes provided they are the two thirds 
thereon Butt that all such agreements Covenants and Subscrip¬ 
cons that are there already made and had Or that hereafter 
shall be in this Manner Consented to agreed and Subscribed 
shall at all time and times hereafter be firme and Stable And 
in Confirmacon hereof It is Enacted by the Governour Councell 
and Representatives; That all Such Sumes of money soe agreed 
on Consented to or Subscribed as aforesaid for maintenance 
of said publick Ministers by the two thirds of any Towne on 
Long Island Shall alwayes include the Minor part who shall be 
regulated thereby And also Such Subscripcons and agreements 
as are before menconed are and Shall be always ratified per¬ 
formed and paid, And if any Towne on said Island in their 
publick Capacity of agreement with any Such minister or any 
perticuler persons by their private Subscripcons as aforesaid 
Shall make default deny or withdraw from Such payment Soe 
Covenanted to agreed upon and Subscribed That in Such Case 
Upon Complaint of any Collector appointed and Chosen by 
two thirds of Such Towne upon Long Island unto any Justice 
of that County Upon his hearing the Same he is here by author¬ 
ized empowered and required to issue out his warrant unto 
the Constable or his Deputy or any other person appointed for 
the Collection of Said Rates or agreement to Levy upon the 


313 


goods and Chatties of the Said Delinquent or Defaulter all 
such Sumes of money Soe covenanted and agreed to be paid 
by distresse with Costs and Charges without any further Suite 
in Law Any Lawe Custome or usage to the Contrary in any 
wise Notwithstanding. 

PROVIDED Alway es the said sume or sumes be under forty 
shillings otherwise to be recovered as the Law directs. 

AND WHEREAS All the Respective Churches now in practice 
within the City of New Yorke and the other places of this 
province doe appeare to be priviledged Churches and have 
beene Soe Established and Confirmed by the former authority 
of this Government BEE it hereby Enacted by this Generali 
Asembly and by the authority thereof That all the Said Re¬ 
spective Christian Churches be hereby Confirmed therein And 
that they and Every of them Shall from henceforth forever be 
held and reputed as priviledged Churches and Enjoy all their 
former freedomes of their Religion in Divine Worshipp and 
Church Discipline And that all former Contracts made and 
agreed upon for the maintenances of the severall ministers 
of the Said Churches shall stand and continue in full force and 
virtue And that all Contracts for the future to be made Shall 
bee of the same power And all persons that are unwilling to 
performe their part of the said Contract Shall be Constrained 
thereunto by a warrant from any Justice of the peace provided 
it be under forty Shillings or otherwise as this Law directs pro¬ 
vided allsoe that all Chrisian Churches that Shall hereafter 
come and settle within this province shall have the Same Privi- 
ledges.— (From Colonial Laws of New York, Vol. 1, 1664- 
1719, pp. 1 1 1-116.) 

The New York Charter of Liberties is the first really 
great instrument in American constitutional history. The 
compact on the Mayflower, the ordinance of the Virginia 
Company of London for the government of Virginia, and 
the fundamental orders of Connecticut are noteworthy, 
but they did nothing more than fix the form or frame of 


314 


the government, without imposing any constitutional 
restrictions thereon. 

The New York Charter of Liberties was a bold and 
very able attempt to establish a representative govern¬ 
ment and to place limitations on its power; in short, to 
create a constitutional republic; and challenges our 
admiration, not only because it was framed nearly a hun¬ 
dred years before the American Revolution of 1776, and 
five years before the English Revolution of 1688, but also 
because of the accuracy and clearness with which it de¬ 
clares and enunciates those great and enduring principles 
of civil and religious liberty, which are sought to be pre¬ 
served by the written constitutions, state and federal, of 
the United States. 

The New York Charter of Liberties unequivocally pro¬ 
vides for representative taxation and legislation; it pro¬ 
vides that no man shall be “adjudged or condemned but 
by the lawful judgment of his peers, and by the law of 
this province/’ or “without being brought to answ T er by 
due course of law;” it adopts the rules and methods of 
Magna Carta for securing reasonable amercements; it 
provides for presentiments and trials by grand and petit 
juries of the vicinage; it prohibits the quartering of sol¬ 
diers in the houses of the people, and it enforces religious 
freedom. 

The New York Charter of Liberties is certainly a most 
interesting document; it is our first great constitutional 
landmark; it was the forerunner of the state and federal 
constitutions of a century later; and too much cannot be 
said in praise of the first legislative assembly in New 
York, and in honor of its speaker, Mathias Nicolls. Nor 
can we withhold admiration for Thomas Dongan, w r ho as 


315 


the governor of the province appointed by the Duke of 
York, approved the Charter of Liberties in December, 
1G83, and sent it to England by Capt. Mark Talbot for 
confirmation by the Duke. 

“After long consideration and apparently after some 
amendments had been made, the Duke says Chalmers 
(Political Annals, p. 588) ‘actually signed’ the patent, 
‘which only required some trivial solemnity to render 
it complete and irrevocable.’ ” 

The Duke of York signed and sealed the instrument 
on October 4, 1684; it was countersigned by his secre¬ 
tary, Sir John Werden, and sent the same evening to 
the auditor (Mr. Aldworth) to be registered by him and 
then to be delivered to Capt. Talbot to carry to New 
York. (Historical Magazine, August 1862, Vol. 6, p. 
233.) 

There was some delay, and before the charter had 
started across the Atlantic on what would have been a 
voyage and mission of liberty and freedom, Charles II. 
died, Feb. 6, 1684-5, and the Duke of York became King 
of England as Janies II. The Duchy of New York was 
merged in the kingship, and from thenceforth until 
American independence New York was a royal province. 

James II. started on that stupid and foolish career 
which was to cause him in four years to lose the crown 
of England, by annulling the New York Charter of Liber¬ 
ties, which he had previously signed. 

The following objections to the charter were read 
before the king, and the committee of trade and planta¬ 
tions in the council chamber, at Whitehall March 3, 
1684-5, and they are here inserted, as of historical inter- 


316 


est, and as illustrative of that short-sighted policy of the 
King and Parliament which caused the English colonies 
in America to seek their independence; and mainly be¬ 
cause the mother country denied to the people of the 
colonies those constitutional rights and safeguards, which 
the English at home had secured for themselves. 

OBSERVATIONS UPON THE CHARTER OF THE PROVINCE OF 
NEW YORK. 

(3 Doc. Col. His. New York, p. 35 7.) 

Observations Upon the Charter of New York. 

Charter. That the Inhabitants of New York shall be governed 
by and according to the Laws of England. 

Observation. This Priviledge is not granted to any of his 
Ma ts . Plantations where the Act of Habeas Corpus and 
all such other Bills do not take Place. 

Chart. Sheriffs and other Officers of Justice to be appoint— 
with like power as in England. 

Obs. This is not so distinctly granted or practised in any 
other Plantation. 

Char. That the Supreme Legislative Authority shall remain 
in the Governor, councill and the People mett in Gen n . 
Assembly. 

Obs. The Words The People met in a General Assembly are 
not used in any other Constitution in America; But only 
the Words General Assembly. 

Char. The Exercise of the Chief Magistracy and Administra¬ 
tion of the government shall be in the Gov r assisted by a 
Council; with whose advice and consent he shall and may 
govern and rule the said Province according to the laws 
established. 

Obs. If this oblige and restrain the Gov r from doing any¬ 
thing without the Councill it is a greater restraint than any 
other Gov r is subject to. 


317 


Charter. That according to the usage and practice of the 
kingdom of England there shall be a sessions of a Gen¬ 
eral Assembly to be called to meet once in 3 Years or 
oftener. 

Observations. This is an Obligation upon the government 
greater than has been ever agreed to in any other Planta¬ 
tion. 

And the grant of such a privilege has been rejected 
elsewhere, notwithstanding a Revenue offered to induce it. 

Char. Which Representatives of the Province with the Gov¬ 
ernor and his Councill shall be the Supream and only 
legislative power of the said province. 

Obs. Whether this does not abridge the Acts of Parliament 
that may be concerning New York. 

Char. That all Bills agreed upon by the Said Representatives 
shall be presented by them to the Governor and Councill 
for the time being for their Approbation and Consent. 

Obs. 1 his seems to take away from the Governor and Coun¬ 
cil the power of framing Laws as in other Plantations. 

Char. Which Bills so approved shall be deemed a Law for 
the space of two years, unless the Lord Proprietor shall 
signify his dissent within that time. That in case the Lord 
Proprietor shall confirm the Laws within that time, they 
shall continue in force untill repealed by the Assembly. 
That in Case of Dissent or Determination of two years 
they shall be void. 

Obs. This Term of years does abridge the King’s power, and 
has been thought inconvenient in other Plantations, and 
is different from Colonel Dongan’s Instructions. 

Chart. No person shall be admitted to sitt in the Assembly 
until he hath taken the Oaths of Allegiance and Fidelity 
to the Lord Proprietor. 

Obs. This must be altered at present. 

Chart. And by his submission and peacable behaviour hath 
demonstrated his affection to the Government. 


318 


Obs. This seems to be restrained by what follows: 

Chart. That the Assembly shall with the Consent of the Gov¬ 
ernor judge of undue elections, and of the qualifications 
of the Representatives; and with the like consent to purge 
their house, and expell any member as they shall see 
occasion. 

Obs. This may be inconvenient, and is not practiced in some 
other plantations. 

Char. That the forfeiture for not making due Entries shall be 
applyed, one third to the Lord Proprietor, one third to 
the Governor, and one third to the Informer. 

Obs. The Application to the Gov r is unusual. 

Char. That all Christians shall enjoy Liberty of Conscience so 
they do not disturb the peace. 

Obs. This is practised in the Proprieties. 

Char. That every publick Minister upon Long Island shall be 
maintained according to the subscriptions: That all Con¬ 
tracts made in New York for the maintenance of the sev- 
erall ministers shall be made good. 

Obs. This is agreeable to the Practice of New England, but 
not of his Ma ts . other Plantations. 

Endorsed 

Observations upon the Charter of New York. 

Read 3 Mar. 8 4/5. 

The English revolution of 1688 had its counterpart in 
the revolt led by Jacob Leisler, who proclaimed the 
Prince of Orange as King of England, fortified the lower 
end of Manhattan Island, since known as the “Battery 
and as he at first refused to recognize Henry Sloughter, 
a worthless fellow who had been sent over as Governor, 
refused to surrender the fort and fired on the royal 
troops, he and Milborne, his secretary and chief abettor, 
were convicted of treason and executed May 16, 1691, 


319 


on the site now occupied by the building of the New 
York World. 

Sloughter had called an assembly, and three days 
before the execution passed “an act declaring what are 
the rights and privileges of their Majesties subjects in¬ 
habiting within their province of New York.” 

This act re-enacted the Charter of Liberties of 1683, 
but added two obnoxious clauses. 

The first of these reads: 

1 hat no person of what degree of condition soever, 
throughout this Province, chosen, appointed or commissioned 
to officiate or execute any office, or place, civil or military 
within the Province, etc., shall be capable in the law to take 
upon him the charge of such before he hath first taken the 
oaths appointed by Act of Parliament to be taken in lieu of 
oaths of supremacy and allegiance, and subscribed the Test. 

The other obnoxious clause was the proviso to the pro¬ 
vision for religious toleration. It reads: 

“Always provided that nothing herein mentioned or con¬ 
tained shall extend to give liberty to any persons of the Romish 
religion to exercise their manner of worship, contrary to the 
laws and statutes of this their majesties Kingdom of England.” 

The act of May 13, 1691, remained in force for six 
years, as it was not repealed by William III. until May 
11, 1697, when the Lords of Trade made an adverse report 
thereon, to the effect that it gave “unto the representa¬ 
tives of that province too great and unreasonable privi¬ 
leges during the sitting of the assembly; and to all inhab¬ 
itants (except inn holders) such an exemption from the 
quartering of soldiers as we conceive may be inconvenient 
to his Majesty’s service there, and contains also several 
large and doubtful expressions.” 


320 


Legislative Forms. 

It has been my intention to deliver a separate lecture 
on the restrictions placed by many state constitutions 
on the forms to be observed by the Legislature in the 
enactment of laws, but I now deem it advisable to only 
call your attention to main features of the subject. 

The Michigan constitution of 1850 has the following 
provisions, which have been retained by the constitution 
of 1908: 

“No law shall embrace more than one object, which 
shall be expressed in its title.” 

“No law shall be revised, altered or amended by refer¬ 
ence to its title only, but the act revised and the section 
or sections of the act altered or amended shall be re¬ 
enacted and published at length.” 

“The style of the laws shall be: ‘The People of the State 
of Michigan enact.’ ” 

The Michigan constitution of 1908 contains the fol¬ 
lowing additional restrictions: 


Article VII. 

Sec. 1. The judicial power shall be vested in one Supreme 
Court, Circuit Courts, Probate Courts, Justices of the Peace, 
and such other courts of civil and criminal jurisdiction, inferior 
to the Supreme Court, as the Legislature may establish by gen¬ 
eral law, by a two-thirds vote of the members elected to each 
House. 


321 


Article VIII. 

Sec. 6. The Legislature shall by general law provide for 
the appointment of a Board of Jury Commissioners in each 
county; but such law shall not become operative in any county 
until a majority of the electors voting thereon shall so decide. 

Sec. 8. The Legislature may by general law confer upon 
Boards of Supervisors of the several counties such powers of 
a local legislative and administrative character not inconsistent 
with the provisions of this Constitution, as it may deem proper. 

Sec. 1 7. The Legislature may by general law confer upon 
organized townships such powers of a local legislative and 
administrative character not inconsistent with the provisions 
of this Constitution, as it may deem proper. 

Sec. 20. The Legislature shall provide by a general law for 
the incorporation of cities, and by a general law for the incor¬ 
poration of villages; such general laws shall limit their rate of 
taxation for municipal purposes, and restrict their powers of 
borrowing money and contracting debts. 

“Section 21. Under such general laws, the electors of each 
city and village shall have power and authority to frame, adopt 
and amend its charter, and through its regularly constituted 
authority, to pass all laws and ordinances relating to its munici¬ 
pal concerns, subject to the constitution and general laws of 
this state.” 

Sec. 26. The Legislature may by general law provide for 
laying out, construction, improvement and maintenance of 
highways, bridges and culverts by counties, districts and town¬ 
ships; and may authorize counties or districts to take charge 
and control of any highways within their limits for such pur¬ 
poses. The Legislature may also by general law prescribe the 
powers and duties of Boards of Supervisors in relation to high¬ 
ways, bridges and culverts, etc. 

Sec. 30. The Legislature shall pass no local or special act 
in any case where a general act can be made applicable and 
whether a general act can be made applicable shall be a judi- 


322 


cial question. No local or special act shall take effect until 
approved by a majority of the electors voting thereon in the 
district to be affected. 

These restrictions were borrowed in part from other 
states and would bear the construction placed on them 
by the weight of authority in the states from which 
they were borrowed, if it were not for the fact that the 
Michigan constitution has made additions which permit, 
if they do not compel, a different construction of the sev¬ 
eral provisions when considered in their entirety, than 
the borrowed parts have received in other states. 

It is obvious that the main object and purpose of 
requiring the Legislature to enact general laws is to 
secure uniformity throughout the state, and the judg¬ 
ment of the full membership of the State Legislature 
when it enacts such a law. Yet, in a number of states 
it has been held that in a general law for the incorpora¬ 
tion or government of cities, it is competent to classify 
cities according to their population, and to have a differ¬ 
ent law for each class, thereby permitting that diversity 
of law the constitution was designed to prevent. 

The Michigan constitution of 1908 has a much better 
way of securing such diversity of municipal organization 
and government, for it provides that subject to the gen¬ 
eral law for the incorporation of cities and to the con¬ 
stitution and the other general laws of the state, “the 
electors of each city and village shall have power and 
authority to frame, adopt and amend its charter and to 
amend an existing charter of the city or village hereto¬ 
fore granted or passed by the legislature for the govern¬ 
ment of the city or village, and through its regularly 
constituted authority, to pass all laws and ordinances 
relating to its municipal concerns.” 


323 


It remains to be seen what construction the Supreme 
Court of Michigan will place on the provisions of the 
constitution of 1908 requiring general laws. 

The decisions in other states are very conflicting; the 
subject is intricate; and at some time in the future you 
will have occasion to dig into it. 

My purpose in these lectures on the legislative has been 
to trace the origin and development and to show the na¬ 
ture of the legislative power as it exists in these United 
States of America, and to bring before you the great his¬ 
torical documents which illustrate the subject. 

BIBLIOGRAPHY. “History of the State of New York,” in 
two volumes by John Romeyn Brodhead, published in 1853, 
was written after the author had passed three years in the 
archives of Holland, England and France as the agent of the 
State of New York to procure or transcribe documents in 
Europe relating to the history of the State, with the result that 
he obtained over 5,000 important papers, which were pub¬ 
lished in eleven quarto volumes by Act of the State Legisla¬ 
ture. 

“A History of New York from the beginning of the world to 
the end of Dutch Dynasty,” by Diedrich Knickerbocker, writ¬ 
ten by Washington Irving and published in 1848 made it’s 
author famous and started him on a successful literary career. 
It is a comic history dealing with the main historical facts and 
the manners and methods of the people of that New Amster¬ 
dam which became the great City of New York. 
























































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